I concur, but in my judgment the court should not have permitted plaintiff to testify as to the facts of direct transactions and oral communications between himself and Charles W. Wunderlich prior to a showing by competent testimony that plaintiff had an obviously meritorious cause of action against the estate. However, I am satisfied from the testimony of the witnesses Leta L. Morrow and Messrs. Morrow, Holgren, Curtis and King that the court was justified in deciding that a recovery could not be had upon an obviously meritorious cause of action without the plaintiff's testimony, and cannot be said to have abused its sound discretion in admitting it. In view of this situation, the judgment should not be reversed because of an error which has not affected the substantial rights of the parties. A trial court should not admit the testimony of a witness, prima facie incompetent, until sufficient *Page 275 other testimony is admitted to warrant the court in exercising its discretion in favor of the questionable testimony. (Cobb v.Follansbee, 79 N.H. 205, 107 A. 630.) The court must exercise its discretion with caution and reasonable strictness, and not so loosely as to infringe on the general rule, unless it reasonably appears that otherwise injustice will result, and therefore the exception rather than the rule should apply.
ASSOCIATE JUSTICES MATTHEWS and GALEN concur in the opinion of MR. JUSTICE ANGSTMAN, and also in the concurring opinion of the CHIEF JUSTICE.