Easterly v. Jackson

92 P. 480, 36 Mont. 205, 1907 Mont. LEXIS 23

Opinions

MR.. JUSTICE SMITH

delivered the opinion of the court.

This is the second appeal in this ease. (Easterly v. Jackson, 29 Mont. 496, 75 Pac. 357.) On the former appeal this court held that the instrument sued on was, according to plaintiff’s own testimony, given without consideration, and reversed a judgment in favor of the plaintiff. Upon a new trial being had, the court below granted a nonsuit against the plaintiff, and thereafter entered a judgment in favor of the defendant. From an order denying him a new trial of the issues, plaintiff appeals.

Personally, I am unable to concur in the reasoning of this court upon the former appeal.- But that decision is the law of the case, and, unless the plaintiff on the retrial introduced some additional evidence going to show a consideration for the instrument declared upon, he was properly nonsuited. I have carefully examined the testimony, and I find no new or additional evidence in substance. Had the offer of proof, made by plaintiff’s counsel, been as broad in its scope as the allegations of his replication, I have no doubt it would have been error on the part of the court to refuse to allow the testimony to be taken; but that offer of plaintiff falls far short of comprehending the material .allegations of the replication, and, had the proof been received, it would have added nothing to the case made by plaintiff upon the first trial.

The order-of the district court of Broadwater county is affirmed.

Affirmed.