It appears from the record that there were many suspicious contradictions and evasions in the evidence given by-Harrington, the plaintiff, and Wearth and Donavan, who were his main witnesses. These it is needless to enumerate. But, regarding Harrington’s explanation of his participation in this transaction in the most favorable light to himself, we should not hesitate to set aside the verdict on the evidence, were it not for the rule that, where there is a conflict in the evidence on the trial, an appellate court should not trench upon the province of the lower court and its jury.
By a mere question, no doubt, Harrington could have ascertained how Wearth obtained possession of the check, and the total lack of consideration therefor, as between himself and Leggat. As a man of ordinary business prudence, should he not have endeavored to obtain this knowledge before paying out such a large amount of money to a man whose financial standing was of so dubious a character as Wearth’s? Could he not have waited until the banks opened before paying Wearth the $1,750 he claims to have paid before 10 o’clock *416that morning ? His failure to ask any questions, the unusual signature of Leggat, Wearth’s financial condition, Wearth’s haste to have the check cashed, and the fact that, in order to save a bill of $80, he was willing to risk the loss of $2,420, all indicate a most unusual line of conduct, so far as he is concerned, and are hardly compatible either with ordinary business prudence or even common honesty. But our decision must depend on other considerations than the sufficiency of the evidence to justify the verdict.
It is assigned as error that the pleadings do not support the judgment. Appellants’ counsel urge that upon the authority of Thamling v. Duffey, 14 Mont. 567, 37 Pac. 363, the burden of proof was upon plaintiff, under the existing conditions of the case, to establish his good faith in the purchase of the check, and that he should have pleaded his good faith” in the complaint or replication.
The lower court properly instructed the jury as to the burden of proof, in accordance with the rule laid down in Thamling v. Duffey, supra. Modified in Rossiter v. Loeber, 18 Mont., 372.
It is true that the complaint does not aver good faith on the part of the plaintiff, but until the plea of fraud was filed, such an allegation in the complaint would have been unnecessary.
Even, however, if it was necessary for the plaintiff to plead good faith, the averments of the replication sufficiently meet any such requirement. It denies any fraud or collusion, and alleges that the plaintiff purchased the check for its face value in the due course of business, and without any knowledge or information at the time of any defense to it.
During the cross-examination of Harrington he testified : £lI had had transactions with Mr. Leggat before. I had cashed his checks frequently, and ■ I believe he paid me a bill of $6 at one time. • I have not had any other transactions with him, that I remember, though there might have been others. ’ ’ This question was then asked him: *££Had you not in your own saloon gambled with Leggat, and won several hundred dollars from him ?”
*417The question was objected to as not cross-examination, and immaterial. The objection was sustained, and an exception noted.
It is true, as a general rule, that a defendant should not be permitted to make out his case on cross-examination, and that he should be confined therein to matters brought out on the direct examination. If a defendant could make out his case on cross-examination, he might employ leading questions for the purpose. It often happens, however, that no boundary line can readily be drawn between a question put directly on the theory of making out a positive defense, regardless of what has been testified to on the direct examination, and a question asked with a view only to have explained, negatived or modified what has been stated by a witness on his direct examination. Hence no little discretionary power is vested in the trial court in its control of the scope of cross-examination. The orderly conduct of the trial demands this. (See Neil v. Thorn, 88 N. Y. 270, and Thornton v. Hook, 36 Cal. 223.)
The general rule should not be rigidly adhered to, unless the distinction as to what is pertinent cross-examination, and what is an attempt to make out a defense independently of the direct examination, is clear. The purpose of this rule is for the marshaling of the evidence only, and it can never be properly invoked for the exclusion of any evidence that is material or competent. If the distinction is not clear, the counsel cross-examining a witness may, with the court’s permission, make the witness his own, or else may wait until the proper time arrives for making out his defense, and then put the questions the propriety of which was doubtful on the cross-examination.
We think the question to which the objection was sustained should have been allowed, in so far as the materiality of the answer to it was concerned. The answer might have been material as tending to shed light on whether Harrington had reason to doubt the honafides of Leggat’s indorsement, and the consideration for the same, when Wearth presented the check to him. If Harrington knew that Leggat gambled in *418saloons, that knowledge was a circumstance for the jury to consider in determining his good faith.
The question was objected to both as being immaterial and not cross-examination. If the court had excluded it solely, on the ground that it was not proper cross-examination, we would uphold its ruling, because of its discretionary power in respect to controlling cross-examination. But we cannot tell whether it did or not, under the double objection made. Even on cross-examination, however, it would have been proper to have allowed it, and immediately thereafter Harrington was properly enough allowed to be cross examined as to Leggat’s getting drunk at times. The question was pertinent as to the extent of the acquaintance Harrington had with Leggat.
Lynch testified in behalf of the appellants that he had gone to the different banks in the city before they opened, and stopped payment of the check in controversy, and that, upon his return before the time of the opening of the banks, Harrington and Wearth had together entered his saloon. He said: “Just after I got back to my place, Harrington and Wearth came in there. I told Wearth that I wanted to see him, and I took him into the back room, and asked him about Leggat’s check; and he said he won it from him, playing cards.”
Objection was made to the conversation because it was had without the hearing of Harrington, and the objection was sustained.
Again, the following question was put to Lynch as to what occurred at the same time : ‘ ‘What did Harrington say about it?” and he answered : “I called Wearth back into the room, and told him he had better give me back the check, or give it back to Leggat, and he said : ‘I have not got the check, Ed. I gave it to Mr. Harrington, and he is going to have it cashed for me. ’ ”
This latter testimony was stricken out, on the objection that it was not responsive to the question and was incompetent.
W e think that both these rulings were erroneous. On the theory that Lynch was telling the truth when he stated that Harrington, accompanied by Wearth, came into his saloon be*419fore the banks opened, and only claimed to have paid §1,750 on the check (which contradicts Harrington’s testimony as to the payment of any money to Wearth after the opening of the banks at 10 o’clock), this testimony was admissible as tending to establish collusion and a conspiracy between Wearth and Harrington. Between the time of the payment of the §1,750 to Wearth (which, according to Harrington, was some time after 9 o’clock) and the coming of himself and Wearth into Lynch’s saloon (before 10 o’clock, according to Lynch’s testimony), the interval would necessarily have been very brief; and if Harrington before 10 o’clock only claimed to Lynch to have paid §1,750 on the check, the conspiracy, if there was one, was still in progress. In this view, both as a part of the -res gestae, and as a declaration of one of the conspirators against another, the evidence was competent.
But respondent’s counsel urges, even if this evidence were competent, the last answer was properly stricken out, because it was not responsive to the question which brought it forth.
We cannot agree with this last contention. Under the circumstances, competent evidence should not have been stricken out, even though it was there improperly from a merely formal point of view.
We think that the giving of instruction No. 9 was prejudicial error. It might readily have conveyed to the jury the idea that Leggat duly (that is, in a lawful manner) indorsed the check to Wearth. . The answer denied that Leggat had “duly indorsed” the check to Wearth. True, the denial that the check was duly indorsed, considered by itself, would be a denial of a legal conclusion only. But the gist of the issue in the case was the legality, under the facts, of the indorsement.
Respondent’s counsel says in his. brief : “We may admit that the instruction was drawn and given by an oversight, and admit that the answer attempted to .deny the indorsement of the check by the defendant Leggat to Wearth. However, * * * upon the witness stand the defendant Leggat admits that it is his indorsement, and the mere fact of a mistake in the instruction that it was admitted by the pleadings in the *420action, instead of stating that it was admitted by the defendant in his testimony, we submit, is not sufficient to justify a reversal of the case, as it is not prejudicial error.”
We cannot agree with this. It is true, Leggat admitted in his testimony that the signature was his, but he stated that he was too drunk to know what he was doing when he signed his name.
Objection is also made to instructions Nos. 11 and 12. We think the first is objectionable in two respects : It might readily have conveyed to the jury the impression that, if Harrington had no actual notice of the manner in which the check had been obtained by Wearth, then he was acting in good faith. It also overlooked the fact that, if Harrington had paid only $1,.750 on the check before he learned that it was obtained in gambling, he was nevertheless, under its terms, even if he paid the remainder after such knowledge, entitled to recover whatever he paid on the check.
Instruction No. 12 is also objectionable in the last aforesaid point of view. We do not think the other instructions given properly cured the defects in these instructions 11 and 12. The judgment is reversed, and the cause is remanded, with directions to the lower court to grant a new trial.
Reversed and Remanded.
Pemberton, C. J., and Hunt, J., concur.