(dissenting):
I agree, of course, that plaintiff had the burden of proving his cause of action before he was entitled to a verdict. I think he sustained that burden by clear and convincing evidence. In fact, the evidence was not disputed by credible evidence. He produced the cancelled checks showing the amount of the loan made by him and he produced evidence that defendant Peters and his wife admitted that defendant Peters owed plaintiff the amount claimed.
*250In support of plaintiff’s case lie submitted proof showing that he loaned $12,150 to defendant for the purchase of cows. Ten cancelled checks were introduced in evidence as exhibits numbered 1 to 10, made payable to Jim Peters and executed by plaintiff with the dates and amounts as follows: July 23, 1951, $2,000; July 25, $2,500; July 27, $1,000; July 28, $1,000; August 24, $1,000• August 27, $1,000; September 7, $650; September 16, $500; September 19, $1,000; August 6, $1,500. The ten checks total $12,150. On the face of six of these checks were written the words “for cows.”
Plaintiff also introduced testimony of several witnesses who were present at a meeting in Browning at which meeting Jim Peters and his wife admitted that Peters owed plaintiff the sum of $4,807.76.
Defendant Peters denied that plaintiff loaned him any money for the purchase of cows, but testified that the cheeks given by plaintiff to him were for the purchase of contracts with Indian ranchers to deliver calves in the fall. He introduced in evidence exhibits 134 to 139, each of which is called “Live Stock Bill of Sale and Contract.” These showed the sale by Peters and the purchase by plaintiff at 33^ per cwt. of a stated number of calves to be delivered on or before a fixed time with two per cent shrinkage. Each states the amount of money received as part payment. The dates, number of calves and amounts stated as part payment are as follows:
Exhibit 134 July 27, 1951 300 calves $6,600
Exhibit 135 July 2, 1951 100 calves $2,200
Exhibit 136 July 7, 1951 100 calves $1,100
Exhibit 137 July 10, 1951 100 calves $2,200
Exhibit 138 July 19, 1951 100 calves $2,200
Exhibit 139 August 3, 1951 100 calves $3,200
Total ..........................................................................$17,500
Defendant testified in substance that the checks, offered by plaintiff, being exhibits 1 to 10, were in payment for these contracts for the purchase of calves.
*251In rebuttal plaintiff admitted that he purchased the contracts, exhibits 134 to 139, inclusive, but denied that the checks represented by exhibits 1 to 10 represented payment for these calf contracts. He then introduced in evidence exhibits 148 to
162 which he said were the checks calf contracts. Exhibits 148 to 162 plaintiff to Jim Peters in 1951, the as follows: given in payment of the are all checks given by dates and amounts being
Exhibit 148 June 22 $2,442.00
Exhibit 149 June 23 $1,000.00
Exhibit 150 June 25 $1,000.00
Exhibit 151 June 27 $1,000.00
Exhibit 152 June 27 $ 758.00
Exhibit 153 June 29 $1,000.00
Exhibit 154 June 30 $1,200.00
Exhibit 155 July 7 $1,100.00
Exhibit 156 July 9 $2,200.00
Exhibit 157 July 19 $2,200.00
Exhibit 158 July 30 $1,200.00
Exhibit 159 August 3 $1,000.00
Exhibit 160 August 19 $1,000.00
Exhibit 161 August 31 $ 400.00
Exhibit 162 September 5 $ 600.00
Total ................................................$18,100.00
The record shows without controversy that defendant purchased and sold cows as well as calves. Peters admitted that in some cases he endorsed checks received on the sale of cows to plaintiff McDonald. McDonald’s testimony was to the effect that payments on the loan represented by the checks, exhibits 1 to 10, were made in this manner and the indebtedness thus reduced from $12,150 to $4,807.76.
■ Peters and his wife, in explaining the conversation testified to by plaintiff’s witnesses in which they admitted that Peters owed the $4,807.76 to plaintiff, said it was tied up in the calves that the Indians did not deliver.
*252Peters offered no explanation of the cheeks, exhibits 148 to 162. Plaintiff’s explanation that they furnished the consideration for the calf contracts is not directly disputed and is the only reasonable explanation in the record. The total consideration for the bills of sale contracts for the calves, exhibits 134 to 139, inclusive, was $17,500. This is the sum total of the checks, exhibits 148 to 161 inclusive, whereas the cheeks involved in plaintiff’s complaint, exhibits 1 to 10, inclusive, amount to $12,150.
The $600 check, being exhibit 162, was explained by plaintiff as being a down payment on some cattle bought from Harvey Monroe and not included in exhibits 134 to 139. Likewise the date of the cheeks, exhibits 1 to 10, and the respective amounts indicate that they were not the checks given in payment for the calf contracts. Whereas the dates of the cheeks, exhibits 148 to 161, inclusive, do correspond quite closely with the dates and exactly with the amounts contained in the calf contracts, exhibits 134 to 139, inclusive.
Defendant’s testimony to the effect that cheeks represented by exhibits 1 to 10 were in payment of the calf contracts was so completely overcome by documentary evidence (exhibits 148 to 161 inclusive) as to leave no room for a difference of opinion by reasonable men, where as here, there was no other explanation offered and the record stands uncontradicted that the checks represented by exhibits 148 to 161, inclusive, were given in payment of the calf contracts and where they represent exactly the amount incurred on calf contracts. There were no other calf contracts to which exhibits 1 to 10 could apply.
Likewise six of the checks embraced in exhibits 1 to 10 show on their face that they were given “for cows” and plaintiff’s evidence shows that they all represented loans to defendant for the purpose of buying cows.
Court’s instruction No. 7 referred to in the majority opinion and made the basis of that opinion, does not affect the question before us and learned counsel for defendant did not rely upon it either in oral argument or in the brief. It simply told *253the jury that they were not permitted to consider exhibits 148 through 162 in establishing the indebtedness alleged in the complaint or in reaching the amount of the loan relied on by plaintiff.
Plaintiff is not relying upon any of the amounts embraced in exhibits 148 through 162 in establishing his claim. He relies on exhibits 1 through 10 for that purpose. He testified regarding exhibits 148 through 162 to rebut the claim of defendant that the money from cheeks 1 to 10 went for the calf contracts. Plaintiff simply showed that the calf contract money came from other checks not involved in this action and numbered 148 to 162, inclusive. Instruction No. 7 did not furnish an excuse for the jury to find for defendant nor for the trial court nor this court to uphold the jury’s verdict.
I think this case calls for application of the statement made by the Supreme Court of California in Driscoll v. Market St. Cable Ry. Co., 97 Cal. 553, 32 Pac. 591, 33 Am. St. Rep. 203, and quoted with approval by this court in Casey v. Northern Pac. R. Co., 60 Mont. 56, 198 Pac. 141, 145, as follows: “ ‘When a jury catches at a semblance or pretense of evidence for the purpose of somewhat equalizing financial conditions by taking money away from one party and giving it to the other without legal cause, the trial judge should, without hesitation, set the verdict aside; and in the event of his not doing so, this court will grant a new trial’.”
Nor do I think that plaintiff should be deprived of his money because of the difficulties encountered by his counsel in drafting a complaint properly setting forth the facts. I agree that it was proper to admit in evidence the original complaint filed in the case. I do not agree that it showed plaintiff’s position therein to be inconsistent with the position taken in the amended complaint, as stated in the majority opinion. But it did contain statements differing from those in the amended complaint and was admissible as declarations against interest within the rule stated in Gardiner v. Eclipse Grocery Co., 72 Mont. 540, 234 Pac. 490.
*254I think the verdict should be set aside and judgment reversed.