In my opinion, the evidence, aside from the facts of direct transactions and oral communications between Langston and Edna Gillies and the deceased, was sufficient to lay the foundation for the reception of evidence by them as to the oral communications between them and the deceased. The statute permits such testimony "when it appears to the court that, without the testimony of the witness, injustice will be done." (Subd. 3, sec. 10535, Rev. Codes 1921.) The reason for this statute was pointed out in Roy v. King's Estate, 55 Mont. 567, 179 P. 821, and it was there held that, if plaintiff was able to make out a prima facie case without the testimony of facts of direct transactions or oral communications between plaintiff and the deceased, it would not be an abuse of discretion to exclude such testimony. Conversely, if plaintiff could not make out a prima facie case without such testimony, it should be admitted. This was the holding in the case of Wunderlich v. Holt, 86 Mont. 260,283 P. 423. Here, if the oral communications were admitted and believed, they unquestionably established a contract. Without the oral communications, plaintiffs did not make out a prima facie case.
In my opinion, if the court excluded this evidence as being inadmissible, it abused its discretion and committed reversible *Page 77 error. As pointed out in the majority opinion, we are unable to determine from the record whether the court treated this evidence as admissible or inadmissible. It is inconsistent to hold, first, that the trial court did not abuse its discretion in excluding this evidence, and then to say that it was justified in determining, in its discretion and from the point of vantage occupied by it, that it was unworthy of belief. The latter question did not receive the consideration of the court if the evidence was regarded as inadmissible.
This case presents a striking example of the difficulty that confronts this court and the litigants and their counsel on appeal when the lower court fails to rule upon the admissibility of evidence presented to it, either when offered or upon final determination of the cause. Had the trial judge determined in his discretion that the evidence of facts of direct transactions or oral communications between the plaintiff and cross-complainant on the one hand, and the deceased on the other, was admissible, as I think he should have, and had he on all the evidence found in their favor, as he might well have done had he thought the evidence admissible, we would certainly be unable to say that his decision was not supported by a preponderance of the evidence. As the record stands, it is impossible to indulge presumptions in favor of the judgment attendant upon the ordinary case, where the offered evidence is either admissible or inadmissible, as a matter of law, and not dependent upon discretion.
The suggestion in the majority opinion that appellants have not assigned error on the failure of the court to rule on the admissibility of this evidence, and that they briefed the case as though the evidence was admitted, hardly furnishes an excuse for overlooking the failure of the court to rule. Appellant Langston assigned error that the judgment is against the decided preponderance of the evidence. Appellant Gillies assigned as error that the evidence is insufficient to justify the decision of the court. In order intelligently to determine these assignments, it is necessary for this court to know what evidence was before the trial court and whether certain evidence *Page 78 in the record was excluded as inadmissible or was admitted and found unworthy of belief. Neither, in my opinion, should this court be bound in any case by the manner in which it is briefed in this court.
On the state of the record I am unable to join in an affirmance of the judgment.
Rehearing denied November 2, 1933.