#### J. H. WHITE and J. E. WHITE, Trading as J. H. & J. E. WHITE, v. M. E. EVANS, Admr. of J. W. LANGDALE, Deceased.

(Filed 24 September, 1924.)

Deceased Persons — Evidence—Statutes—Appeal an(L Error — Prejudice.

Where a father is sought to be held liable as an original promissor to pay a debt for the son for goods sold and delivered to the son, in an action against the administrator of the deceased father, testimony of the plaintiff that the deceased father had sent him to the son for collection of a certain amount thereof is concerning a transaction between the plaintiff and a deceased person, prohibited by C. S., 1795, and is reversible error, though conflicting inferences may be drawn therefrom.

Appeal by defendant from Brown, J., at May Term, 1924, of Beetle.

Civil action to recover against the estate of J. W. Langdale for goods sold and delivered to Charles and Frank Langdale, sons of the deceased, it being alleged that the father of the two boys had become responsible, on his original promise, for the payment of the account.

Verdict and judgment for plaintiffs. Defendant appeals.

Grillam & Davenport for plaintiffs.

Winston & Matthews and Craig & Pritchett for defendant.

Stacy, J.

This is an action brought by plaintiff against the administrator of the estate of J. W. Langdale to recover on an account for goods sold and delivered to Charles and Frank Langdale, sons of the deceased, it being alleged that the father of the two boys, during his lifetime, had agreed to become originally responsible for the account. Taylor v. Lee, 187 N. C., 393.

*213J. E. White, one of tbe plaintiffs, was permitted to testify tbat on one occasion be went to Frank Langdale and collected $25.00 on tbe account. He added: “I told bim tbat I needed some money, and tbat bis father bad sent me to bim.” Motion by defendant, to strike out tbis remark; overruled and exception. It will be observed tbat tbis action is not against Charles and Frank Langdale. Tbe administrator of tbe estate of J. W. Langdale alone is being sued. Tbis bit of evidence permits tbe inference, and it was so argued to tbe jury, tbat tbe deceased, by sending tbe witness to- bis son for payment, thereby recognized bis own liability for payment of tbe account. Tbis necessarily involved a personal transaction, or communication with J. W. Langdale, who is now dead, and such may not be offered as evidence against bis administrator under C. S., 1795.

In reply to tbis position, it is said tbe objectionable part of tbe testimony of tbe interested witness is also susceptible to exactly a contrary inference, namely, tbat tbe deceased sent tbe witness to Frank Langdale for collection of tbe account because be did not recognize any personal responsibility for its payment. It is, therefore, contended tbat, even if objectionable, tbe admission of such evidence was harmless, as tbe jury might have drawn either conclusion from it. To accept tbis view would be to set tbe statute at naught by a balance of inferences from incompetent evidence. We are not permitted to disregard tbe statute on a doctrine of inferential chances or probabilities as to its effect upon tbe jury. Tbe law is otherwise. No exception of tbis kind is to be found in tbe statute.

"We-think a fair test in undertaking to ascertain what is a “personal transaction or communication” with tbe deceased about which tbe other party to it cannot testify is to inquire whether, in case tbe witness testify falsely as to what transpired between them, tbe deceased, if living, could contradict it of bis own knowledge. Carey v. Carey, 104 N. C., 171. Death having closed tbe mouth of one of tbe parties, it is but meet tbat tbe law should not permit tbe other to speak of those matters which are forbidden by tbe statute. Men quite often understand and interpret personal transactions and communications differently, at best; and tbe Legislature, in its wisdom, has declared tbat an ex parie statement of such matters shall not be received in evidence. Such is tbe law as it is written, and we must obey its mandates.

Tbe admission of incompetent evidence, as above indicated, entitles tbe defendant to a new trial; and it is so ordered.

New trial.