¶1 (concurring in part — dissenting in part).
¶2 I am not convinced that the prevailing opinion has arrived at the right result. Counsel for plaintiff (respondent) argues (pages 20, 21 of his brief) that the evidence introduced as to conversations and transactions between the *67 deceased and plaintiff’s witnesses — particularly the witnesses Morgan as to the $5,000 note — are probative of the fact that both parties to the note considered it a valid and subsisting obligation. This testimony was produced by plaintiff in her case in chief and before she had rested. The probative effect of this testimony is that there was consideration for the note — that it evidenced an indebtedness owing from defendant (appellant) to the deceased. Under the non-statutory waiver rule proposed by the prevailing opinion, this testimony opened the door to the issue of consideration, and unsealed the lips of defendant Peter as to transactions equally within his knowledge and that of the deceased, which tend to prove that the note was issued without consideration. I think the prevailing opinion propounds the acceptable rule for non-statutory waiver of the “Dead Mans” statute, when it does not limit the testimony offered by the defendant to merely the particular bit of conversation or the particular transaction which took place between the witness on behalf of the deceased’s estate and the deceased in his life time. The effect of that conversation or that transaction should be considered, and if it tends to support the estate’s version of an issue about which defendant’s lips would otherwise be sealed, then it constitutes a waiver of the benefit of the statute and unseals those lips.
¶3 Ordinarily in cases such as this, the question would not arise, as there is no necessity under the pleadings for plaintiff to do more than present the note in evidence. Having done that the burden would shift to defendant to present evidence in support of his affirmative defense of no consideration. In attempting this, however, his lips would be sealed by the statute as to matters equally within the knowledge of himself and the deceased; and possibly his defense would be of no avail to him. In this case, however, the plaintiff in her case in chief introduced these conversations that her counsel considers probative of a valid and subsisting obligation in the form of the note. By such proof she has anticipated defendant’s affirmative de *68 fense and unsealed defendant’s lips from the inhibitions of the statute. That plaintiff’s counsel had in mind, when he produced such testimony, it would be good proof of nonpayment of the note is immaterial. Evidence frequently has probative value upon more than one issue.