Respondent's petition for a rehearing seems to proceed upon the theory that the affirmative defense set up in the answer was established at the trial. The truth is that plaintiff was the only witness examined and his evidence tended to prove the allegations of the complaint and not any allegation of the answer inconsistent therewith. Upon the trial of all the issues in the case it may be that defendant will be entitled to judgment, but we still think that the motion for a nonsuit was improperly granted. We are not inclined to the view that we should not consider the contention that the law of the case is not applicable because the point was not raised in the opening brief. We see no reason why we should not consider it, though it was made, not in anticipation of defendant's argument but in answer thereto.
The petition for a rehearing is denied.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 24, 1907. *Page 462