| Mont. | Feb 8, 1897
We think the court properly concluded to submit the case to the jury upon the ground that the testimony of Nelson and the admissions of the plaintiff testified to by the defendants’ witnesses raised an issue of fact as to the ownership of the cattle in controversy, which was right for the jury to pass on. But we are unable to uphold the rulings of the district court in rejecting the offer of proof made by plaintiff in rebuttal testimony. The complaint alleged ownership, possession, and right of possession of the cattle in controversy, their value, and a wrongful taking by defendants, and defendants’ refusal to give them up, although demand was made. As to these matters the answer may be treated as substantially a denial; but for an affirmative defense the answer set up a purchase on February 22, 1892, from a third party, J. H.-Brand, who, with one Nelson, had-originally purchased the cattle from plaintiff, and who was the sole owner when he sold to defendants, and that by reason of plaintiff’s knowledge of the sale to defendants, and his silence about the time of such sale, he was estopped from claiming title. At the trial, plaintiff introduced evidence to prove his purchase and right of possession, the taking by defendants, value of the cattle, and other matters necessary to sustain prima facie the averments of his complaint. Defendants were then allowed to introduce evidence to prove that one H. W. Child sold the -cattle to Brand & Nelson, and also that plaintiff admitted that he had sold the cattle to Brand & Nelson, and never claimed any interest
When defendants rested, the plaintiff offered (as recited more fully in the statement of facts) to disprove the statements made by defendants’ witnesses by rebutting such proofs by counter evidence of his own, but was erroneously not permitted to do so. The evidence offered was rebuttal. When plaintiff rested, he had made out his prima facie case. It was not necessary for him to go further than to show generally his own ownership and right of immediate possession. The presumption was then that plaintiff continued to be the owner with right of possession until there was evidence that he parted with that ownership or right of possession. And the court ought to have so charged. (Lawson on Pres. Ev. pages 163, 161; Jones on Evidence § 63.) He was not obliged to anticipate the affirmative defenses of the answer, and to furnish evidence to negative their truth. When the defendants introduced their evidence tending to show purchase from Child and admissions by plaintiff, it was the right of plaintiff to call witnesses in relation to the statements and admissions by Brand, the alleged owner, made prior to and at the time of the sale by him to Bach, Cory & Co. concerning the title to the cattle, and of the communication of Brand’s statements to members of the firm of Bach, Cory & Co., and also to explain plaintiff’s alleged conduct about that time and thereafter in not claiming title to the cattle. A party has a right in rebuttal to give evidence which tends to meet the affirmative defense sought to be established by the defendants, and it is error to deny him that right. (Driscoll v. Dunwoody, 7 Mont. 394" court="Mont." date_filed="1888-01-15" href="https://app.midpage.ai/document/driscoll-v-dunwoody-6637802?utm_source=webapp" opinion_id="6637802">7 Mont. 394, 16 Pac. 726; Bancroft v. Sheehan, 21 Hun. 551; Thompson on Trials, § 345.) “As a general rule, he who has the opening ought to introduce all his evidence to make out his side of the issue, except that which merely, serves to answer the adversary’s case. Then the evidence of the adversary is heard, and, finally, the party
Reversed.