#### DAVIDSON v. BARDIN.

(Filed September 12, 1905).

Evidence — Personal Transaction with Deceased.

In an action to recover for- services rendered the defendant’s intestate, the testimony of plaintiff that she “gave him medicine, prepared his nourishment, kept him clean and eared for him generally, he -was helpless altogether ; we had to do all the services and wait on him,” was incompetent under section 590 of The Code, this being a “personal transaction” with deceased.

ActioN by Mary E. Davidson and B. E. Davidson, ber bnsband, against J. D. Bardin, Administrator of Richard Bardin, heard by Judge B. F. Long and a jury, at the Spring; Term, 1905, of the Superior Court of PeequimaNs County.

Aydlett & Ehringhaus for the plaintiffs.

Pruden & Pruden for the defendant.

*2Clark, C. J.

Tbis is an action to recover for labor alleged to bave been performed for seven years prior to bis death, in waiting upon, caring for and nursing tbe defendant’s intestate and bis wife, both of whom were very old and feeble, and not related to tbe plaintiffs.

Tbe feme plaintiff was allowed to testify as a witness in her own behalf over defendant’s objection and exception that she “gave him medicine, prepared bis nourishment, kept him clean and eared for him generally. He was helpless altogether; we bad to do all the-services and wait on him.” This was clearly a “personal transaction” with tbe deceased, and tbe witness was incompetent under Tbe Code, 590. It is true that His Honor excluded any conversation, but tbe statute excludes not merely any “communication,” but also any “personal transaction.”

The cases relied upon by tbe plaintiff merely sustain tbe proposition that tbe witness would bave been competent to testify to any “substantive and independent fact” that was not a “communication or personal transaction” with tbe deceased, as in Gray v. Cooper, 65 N. C., 183, that tbe deceased had possession and use of tbe slaves, or March v. Verble, 19 N. C., 19, that tbe deceased bad owned but one bull since tbe war and what be was worth — or Cowan v. Layburn, 116 N. C., 526, that tbe plaintiff carried provisions to tbe deceased at her bouse and that she bad no other provisions, tbe court being careful to add that it did not appear whether the deceased accepted or refused tbe provisions, thus excluding any “personal transaction,” tbe actual delivery. In all these cases, tbe possession of tbe slaves and of tbe bull, and carrying provisions to tbe bouse of defendant’s intestate were independent, substantive facts, like proving the value of an article sold to tbe intestate (the sale and delivery being proven by another), March v. Verble, supra; and that witness saw tbe book in bands of intestate, but not that she banded him tbe book, which last was held incompetent. *3 Lane v. Rogers, 113 N. C., 171, or tbe numerous cases' (Clark’s Code, 3rd Ed., p. 845) that the plaintiff can prove the handwriting of defendant’s intestate, but not that he saw him sign the paper sued on.

Under these decisions, the plaintiff was competent to testify that she went to the house of defendant’s intestate, and his condition, and what she saw or heard, so long as these» were independent facts and did not tend to show a “communication or personal transaction” between her and the deceased, whereby a liability to her, express or implied, would accrue. His mouth being closed by death to deny the contract, the law enforces equality of condition by forbidding her to prove an express contract by showing a “communication,” or an implied contract by showing a “personal transaction” as the rendition and acceptance of services, which was the object of the evidence here admitted. The witness “may testify to any fact which does not include a personal transaction or communication.” McCall v. Wilson, 101 N. C., 598; Johnson v. Rich, 118 N. C., 268.

Error.