Fienup v. Gordon , 40 S.D. 465 ( 1918 )

POLLEY, J.

(dissenting). 'Defendant’s' counterclaim was based upon the loss of two he'ad! of cattle, claimed to have been lost because iolf plaintiff’s, failure to repair a certain pasture fence, but there ¡is no evidence 'whatever to show that such cattle were lost through such cause. The evidence shows that the cattle ¡were in the habit of breaking -through ¡the fence where it was in repair, and are -fully as likely to have been lost through this cause, or -because they were stolen -or driven off, as because the fence was out olf repair.

The judgment on the counterclaim ought to' he reversed.