
    Rankin v. Hannan.
    Where an administrator in his own behalf testifies to a certain conversation and an agreement between his intestate and the opposite party, which was material to the issue, the other party may testify as to the same transaction and conversation, under the third exception to section 5242 of the Revised Statutes.
    Error to the District Court of Gallia county.
    The issues involved on the trial of this case are fully stated in 37 Ohio St. 113, and need not be repeated. This case was then here on the question' of whether it was one which Rankin could appeal from the common pleas to the district court. It was held that he could, and the cause was remanded to that court for trial upon the issues joined.
    For the present purpose it is sufficient to say, that the original action was brought by Hannan as administrator of James H. Guthrie, on a judgment and order of sale of real estate in favor of one Carter, of which Guthrie was the owner by purchase, to enable the administrator to enforce the same in his own name as the representative of Guthrie’s estate.
    Among other defences, Rankin pleaded payment, setting out sundry items sufficient to satisfy the judgment.
    One of the allegations of the reply was, that all payments made were, by agreements between Guthrie and Rankin, to be applied on other debts, which the latter owed the former, and that they were so applied. Upon this and other issues the court of common pleas referred the case to a master, who took and reported to the court a large amount of testimony, together with his findings. Upon this report, the court of common pleas rendered a judgment in favor of the plaintiff.
    
      Rankin appealed from that judgment, but the district court dismissed his appeal.
    This court reversed that judgment and remanded the case for trial upon the issues involved. Rankin v. Hannan, 37 Ohio St. 113. On the subsequent trial in the district court upon the issues joined, by mutual agreement of the parties, “ the testimony taken before the master, while the action was pending in the court of common pleas, was used as testimony here, and such additional testimony as the parties desired to introduce, and the case was also heard upon the said master’s report and the exception taken thereto in the court of common pleas, upon said testimony so taken before the master, and the additional testimony taken in this court, and was argued by counsel.”
    On the trial, the defendant offered evidence tending to show sundry payments, which should be applied to the satisfaction of the judgment. To rebut that evidence, the plaintiff read from the testimony taken before the master, that of plaintiff offered in his own behalf. Among other things he testified that in December, 1869, in his presence “ it was agreed between Mr. Guthrie and Mr. Rankin that all payments made by Rankin to Guthrie should be applied to the payment of any debt due Mr. Guthrie at the time such payments were made, other than the Cai'ter judgment, till all other debts were paid ; there should be no payment on the Carter judgment till all other debts were paid.”
    Touching this agreement, the defendant Rankins placed, himself on the stand, and his attorneys proposed to, ask him,, whether there was such an agreement made between, him and. Guthrie as the one stated by the plaintiff, and also, what the-conversation testified to by Hannan, between Guthrie in his. life-time and said Rankin was, to which the plaintiff objected, and his objection was sustained, and the defendant was not allowed to give his version of said conversation and contract.
    The only question involved is, did the- court err in refusing to allow these questions to be put and answered ?
    
      Harrison, Olds do Marsh, W. H. C. Holier and D. A. Russell, for plaintiffs in error.
    
      W. J. Gilmore, Nash do Wdrdell and D. B. Heba/rd, for defendant in error.
   Johnson, J.

One of the issues was, whether certain payments made by Rankin to Guthrie in his life-time should be applied on the judgment on which the action was founded, or upon other debts due from Rankin to Guthrie.

Hannan’s testimony taken before the master was read,wherein he stated, that there was an agreement made in his presence, that these payments should first be applied to other claims due Guthrie. The court refused to allow Rankin to testify as to the conversation and agreement between him and Guthrie, in Hannan’s presence, concerning which Hannan had testified. The correctness of this depends on a construction of section 5242, Revised Statutes, which reads: “ A party shall not testify when the adverse party is . . . the executor or administrator . . of a deceased person, except . . . 3. If a party, or one having a direct interest, testify to transactions or conversations with another party, the latter may. testify as to the same transactions or conversations. 4. If a party offer evidence of conversations or admissions of the opposite party, the latter may testify concerning the same conversations or admissions.”

Before discussing the meaning of these provisions, it is proper we should notice a suggestion made by counsel for defendant in error. That suggestion is, that inasmuch as this .-evidence, which was taken before the master, was, by mutual ■consent, to be read on the trial, without any right reserved to contradict it, this was fairly a waiver of the right to impeach er contradict it. Such was not the effect of this agreement, as is manifest from the terms. It was merely a consent that each party might, instead of calling the witnesses into court again, read the testimony taken by the master, and also offer such additional testimony as he might choose. Neither party was bound to offer all the evidence before the master, or indeed any of it, and neither made the testimony read by the other, his own, so as to estop" him from contradicting or impeaching it.

This brings us to the direct question, was Rankin a competent witness as to the conversations and transaction of December, 1869, between him and Guthrie testified to by Hannan ? Hannan, though administrator of Guthrie, was a competent witness to testify on his own behalf as administrator to facts which occurred prior to the death of Guthrie. Doughman v. Doughman, 21 Ohio St. 658. The fact that he was a party as administrator, did not destroy his competency as a witness under the general provisions of the statute. Had some one else been administrator, Hannan could have been called in behalf of the estate. His being administrator did not deprive the estate of his evidence. The fact that he is such administrator, prevented Rankin from being a witness in his own behalf, except in the cases stated in the eighth exception to this general exclusion.

The 1st exception is, where the facts occurred since the death of the intestate; the 2d is, where the intestate has contracted through an agent who testifies; the 3d is, where & party, or one having a direct interest, testifies to transactions or conversations with another party, the latter may testify to the same transactions or conversations; the 4th is, where conversations or admissions of the opposite party are put in evidence by the administrator, the other party may testify concerning the same; the 5th relates to transactions or admissions of a deceased partner or joint contractor, in an action against the survivor, and excludes them against the survivor, unless made in his presence; the 6th admits account-books of original entries in certain cases against an estate; the 7th allows the former testimony of a deceased party on the further trial of the same case, and admits the opposite party to testify to the same matters; and the 8th is the same, where a deceased party’s deposition has been used.

All of these exceptions to the general rule of exclusion, save, perhaps, the 6th, can be based upon the principle of mutuality of right. If the representative party relies on the transactions, conversations or admissions of the opposite party and puts them in evidence against 'him, the object of these exceptions is to allow such party to be heard upon the same matters, otherwise he would be placed at a great disadvantage. As Hannan was the representative of Guthrie, Rankin could not testify in his own behalf unless within one or the other of the exceptions named. Hannan was a competent witness, to prove conversations, and transactions of Rankin with Guthrie, pertinent to the issue, as well as with others.

This made Rankin a competent witness as to the same transaction and conversations, under the third exception to section 5212 of the Revised Statutes.

Judgment reversed.  