By the Court,
Sanders, J.,
after stating the facts:
The several assignments of error may be grouped and considered as one, namely, that the trial court, in viola-tion of law, allowed the defendant to testify to a transaction when the other party is dead. Rev. Laws, 5419.
Counsel for respondent urges upon us not to consider the assignment of error because it is not in conformity with the statute. Stats. 1915, p. 164. We are of the opinion that the alleged error is sufficiently designated and must be considered.
1, 2. Appellant’s particular grievance, though not in terms so stated, is that the trial court allowed defendant, in support of his defense of fraud in the inception of the note, to testify that his signature thereto was obtained from him by a very gross and fraudulent representation perpetrated upon him by his deceased daughter. It is not denied that, if one party to an original transaction is precluded from testifying by death, the other is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. Roney v. Buckland, 5 Nev. 219" court="Nev." date_filed="1869-07-15" href="https://app.midpage.ai/document/roney-v-buckland-6668104?utm_source=webapp" opinion_id="6668104">5 Nev. 219. But it will be noted that the representation of the deceased concerning the character and purpose of the paper was made in the presence of the defendant’s wife, who testified concerning the representation without objection or cross-examination. Her testimony and .that of defendant, independent of and unconnected with the transaction, was such that, conceding, but not deciding, that it was error to permit the defendant to give his uncontradicted and unexplained account of the transaction between himself and the deceased payee, it was error of such character that this court would not be justified in disturbing the verdict of the jury on that account. It is *330not every error occurring at the trial that will warrant the court in reversing the judgment of the trial court. We are admonished by statute to disregard an exception unless it be material and affects the substantial rights of the parties. Rev. Laws, 5315.
3, 4. In opposition to this conclusion, it is in effect argued that when plaintiff introduced the note with the admission of signature he made out a prima facie case, and, with the objectionable testimony removed, was entitled to a verdict. In this contention we are unable to concur. An inspection of the note provokes suspicion of its genuineness to such an extent as to make it incumbent upon plaintiff to offer some explanation of its condition when he first saw it. This the plaintiff deliberately refrained from doing. In a suit on a note circumstanced as this was, stripped by evidence for the defendant of its commercial character, based ostensibly on some sort of a contract, it became and was the duty of the plaintiff, having notice of the defenses against the note, to be prepared at the trial to offer some evidence other than the note itself to entitle him to a verdict. The silence of plaintiff tended to impress the jury that plaintiff was either afraid to speak or preferred to rely upon the law merchant and the death of his copayee to make his case. Though death had sealed the lips of his copayee, the relationship of the payees was such that plaintiff could not plaster his mouth with the note to preclude himself from giving testimony, at least tending to show that he had no notice of the defects or infirmities cast upon the note by competent evidence for the defendant. Plaintiff’s conduct prior and subsequent to the delivery of the note to him by the deceased was the subject of investigation. The jury may have regarded his conduct as being suspicious, if not dishonorable. The plaintiff had an opportunity to explain it, and an interest in so doing, yet he failed and refused. It is but reasonable to assume the jury, as it had the right, placed the worst construction on plaintiff’s conduct. 10 R. C. L. 888. The plaintiff was an actor in the procurement of the note, as well *331as the deceased. The odious situation attributable to him and culminating in his possession of the note impelled plaintiff to offer some explanation of his conduct consistent with his honesty and fair dealing with the defendant. The note standing alone does not answer the odious charges against it.
Upon the whole case we are satisfied there was sufficient competent evidence to warrant the verdict. We therefore conclude to affirm the order denying to plaintiff a new trial.
On Petition for Rehearing
By the Court,
Sanders, J.:
It is urged that the note sued on was in fact and truth a gift from the defendant, Echave, to his daughter and plaintiff Bengoa. If this be true the weight of authority has established that one cannot make his own note the subject of a gift to such an extent that it can be enforced by the donee against the donor in the latter’s lifetime, nor against his estate after his death. 1 Dan. Neg. Inst. (6th ed.), sec. 180; 3 R. C. L. 937.
Had the record disclosed positively that the note was a gift, the plaintiff would have been spared criticism by this court simply holding that upon his own showing plaintiff had no cause of action.
Ducker, J., did not participate.