59 Mich. 237 | Mich. | 1886
Plaintiff brought replevin to recover the possession of a horse, harness and coal cart from the defendant. Theodore it. Chase, who was a son of the plaintiff, and the defendant had been engaged in business as copartners, under the firm name of Chase & Lee, in the coal trade, in the city of Detroit. Plaintiff claimed title to, and right of possession of, the property under an agreement made with the firm to loan it $150 to enable the firm to purchase the property, and the title was to be taken in his name until the money loaned was repaid. He also took a note of the firm payable three months from November 1, 1882, which was the date of the note. The money was not paid. Plaintiff showed that the property had been used by the firm. It also appears that a day or two before the suit was brought Theodore R. Chase, one of the partners, executed a chattel mortgage upon the property to the plaintiff. Thei’e was evidence introduced tending to show that prior to the time the chattel mortgage was given there had been a dissolution of the copartnership, although Theodore testified that the firm had ceased to make purchases or sales of coal, but that the firm was not yet dissolved, as its business was not yet closed. Proof of a demand of the property from the defendant, and of his refusal to deliver the same, was made, and the plaintiff then rested his case. The defendant, claiming the plaintiff had failed to make out a case, moved the court for a judgment of return of'the property, and to have his damages assessed for the detention. The court overruled the motion, and the defendant introduced evidence tending to show that he purchased the property for himself individually, and not for the firm, and paid for it with his own money and an old blind horse. He also denied that the firm ever borrowed any money from the plaintiff to purchase the property, and asserted that he knew nothing of the note testified to by plaintiff; that he had always kept the property in his own possession, and had charged the firm for
With reference to all those questions which were put for the purpose of disproving the statements of defendant concerning his purchase, sole ownership, and use of the property, and also his denial of any knowledge of the note given by the firm to plaintiff, and its connection with the purchase, the testimony offered was as distinctly in rebuttal as any testimony could be. It could not have been anticipated that the defendant might testify as he did, and there was no way in which this part of the testimony of the witness could have been introduced as a part of the plaintiff’s case in the first instance. The testimony was relevant; and where a party offers relevant testimony in rebuttal of the case made by the defendant, it is error to reject it: Whittingham v. Bloxham, 4 Car. & P. 597; Plank Road Co. v. Bruce, 6 Md. 457.
Ordinarily a party should introduce, before he closes, all the evidence he has to sustain the essential averments of his case, and the court may, in general, regulate the order of proof. But as the object of the introduction of evidence is to enable the court and jury to come to a just conclusion upon all the facts relevant to the issue, the rule should not be so applied as to defeat the ends of justice; consequently, in the case of Giles v. Powell, 2 Car. & P. 259, the counsel
Judgment reversed and new trial ordered.