#### Jackman, Trustee, Appellant, vs. Inman, Respondent.

*October 28*—

November *10, 1908*

*Witnesses: Competency: Transactions with persons since deceased.*

In an action on a promissory note by the personal representative of the deceased payee, defendant claimed that another note, produced by defendant, had been given for the note in suit because the prior note was supposed to be lost, and that the second note had been paid. The note produced by defendant was In his handwriting, including the indorsements, except the printed words and the words “Paid in full with int.” written across its face, which words defendant testified were not on it when he parted with its possession, and that the note was drawn about November 18, 1901. Defendant was also permitted to testify that the words “Old note lost if found canceled by this note,” -indorsed on the second note, referred to the note in suit Defendant also produced a receipt, signed by the deceased, for one year’s interest on a note dated November 18, 1901, and testified that it referred to the interest on the note in suit. *Held:*

(1) The witness was incompetent under sec. 4069, Stats. (1898), since he was testifying to a transaction with the deceased concerning which the plaintiff had offered no evidence.

(2) The evidence being within the prohibitions of sec. 4069, Stats. (1898), was erroneously admitted over plaintiff’s objection.

Appeal from a judgment of tlie circuit court for Rock county: Geoege Geimm, Circuit Judge.

*Reversed.*

On July 7, 1900, tlie defendant gave W. T. Van Kirk, now deceased, a note for $200, with interest at the rate of seven per cent., due in one year. This action is brought by the trustee under the will of the deceased on this note, which was found among the decedent’s papers. The defense is payment. Defendant claims that in 1901 he gave a new note to take the place of the one upon which' this action is brought, which was lost, and that he thereafter fully paid the second note and thereby extinguished the debt. The second note has an indorsement upon its face, claimed by the defend*31ant to be in the bandwriting of tbe deceased, as follows: ■“Paid in full with int.” Upon its back is tbe following in-dorsement, wbicb defendant claims was made by him at tbe time be gave tbe note to tbe deceased: “Int. paid on old note 14.00 Hov. 18 1901 old note lost if found canceled by this note.” Defendant introduced in evidence a receipt for a .year’s interest on a note, and was permitted, over objection, to testify that tbe receipt referred to tbe note on wbicb suit •had been brought. Tbe action was before this court on a former appeal, and is reported in 134. Wis. 291, 114 H. W. 489. Upon tbe *remittitur*and a new trial judgment resulted for the defendant. This is an appeal from such judgment.

Tbe cause was submitted for tbe appellant on tbe brief of *William Q. Wheeler,*and for tbe respondent on that of *Jef-fris, Mouat, Smith & Avery.*

Siebeckee, J.

Upon the trial tbe defendant produced a note and testified that it was in bis bandwriting, including tbe indorsements thereon, except tbe printed words and tbe words “Paid in full with int.” written across its face, wbicb words be states were not on it when be parted with possession of it. He also states that it was drawn about Uovember 18, 1901. He was also permitted to testify in response to a •question as to whether or not be knew what tbe words “Old note lost if found canceled by this note” referred to, and stated: *“A.*It refers to a lost note. *Q.*To what lost note? *A.*It refers to tbe note that they are bringing suit on.” Defendant also produced a receipt for one year’s interest on a note, signed by tbe deceased and dated Uovember 18, 1901, and testified that it referred to interest on tbe note sued on. This evidence was duly objected to by appellant as incompetent under sec. 4069, Stats. (1898), for tbe reason that defendant was testifying to a transaction with tbe deceased concerning wbicb tbe plaintiff bad offered no evidence. It is *32clear that this evidence pertained to a personal transaction between the defendant and the deceased. The decedent during his lifetime would have been a competent witness to refute defendant’s statements he thus makes, to the effect that these indorsements refer to the note in suit and that the receipt covered interest on such note. This evidence being within the prohibition of sec. 4069, Stats. (1898'), was erroneously admitted over plaintiff’s objection. The obvious purpose and effect of it is to show that defendant paid the note sued on by the giving of his note dated November 18, 1901 (Exhibit 1), and which he now produces and claims to have paid the deceased in his lifetime. This is adverse to plaintiff’s claim that the note sued on has not been paid. *Stewart v. Stewart,*41 Wis. 624; *Brader v. Brader,*110 Wis. 423, 85 N. W. 681; *Jackman v. Inman,*134 Wis. 297, 114 N. W. 489.

*By the Gowrt.*— Judgment reversed, and the cause remanded for a new trial.