Opinion of the Court.

grain was tendered by the defendant to the plaintiffs for storage, and that it could not be received for the reason that the plaintiffs' warehouses were filled; that the grain so tendered amounted to 8,685,269 bushels, and that the plaintiffs never declined to receive shipments of grain from the defendant when such elevators had the capacity to receive it within a million bushels, and that when the plaintiffs refused to receive further grain for storage the defendant was notified that it occupied the entire capacity stipulated for it in the contract at the time plaintiffs declined to receive the grain so tendered, to wit, one million bushels."

It is urged in behalf of the defendants in error that this amount of 8,685,269 bushels so tendered by the railway company includes the 6,210,398 bushels which the court finds was actually received into the said elevators during said years. We do not so construe this finding. Its language relates clearly and distinctly to an amount of grain that was tendered by the railway company, and which could not be received by the lessees, for the reason that the warehouses were filled. It is thus shown that, in addition to what was actually received, there was tendered by the railway company, at the place and in the manner provided for in the contract, 8,685,269 bushels, which the elevators could not accept and did not receive and store. The amount so tendered, with that actually received, exceeded the total amount which the railway company agreed that the lessees should have the opportunity to accept and store, and this we hold to be a full and complete compliance by the railway company with the terms and true meaning of its covenant. To hold otherwise would render the railway company liable for the inability of the lessees to accept the performance that was offered by it. It would require the clearest and most unqualified understanding on the part of the railway company to subject it to such a liability.

The plaintiff in error interposed a counter-claim for the rent due it for the years 1886 and 1887, which, as found by the court below, amounted to $9022.30, which was deducted from the amount which the court below adjudged to be due the lessees.

Syllabus.

The conclusion of this court is that the judgment awarded the lessees is erroneous, and must be reversed with costs, and that the cause should be remanded with directions to the court below to enter judgment in favor of the plaintiff in error for the above amount of rent due to it, with interest thereon from October 1, 1889, the date of judgment below, and it is accordingly so ordered.

The CHIEF JUSTICE having been of counsel, and MR. JUSTICE FIELD not having heard the argument, took no part in the consideration or decision of this case.

BOGK v. GASSERT.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA.

No. 179. Argued and submitted March 27, 1893. - Decided April 17, 1893.

Under the practice in Montana a defendant may move for a nonsuit upon the ground that the plaintiff has failed to prove a sufficient case for the jury; but, if he proceed to put in testimony, he waives this right. When one party has been permitted to state his understanding of the contracts which form the subject of the litigation, there is no error in giving a like license to the other party.

An exception cannot be taken to "a theory announced throughout" an instruction of the court.

A general exception to a refusal of a series of instructions taken together and constituting a single request is improper, and will not be considered if any one of the propositions be unsound.

When a grantor makes an absolute deed of real estate, for a money consideration paid by the grantee to the grantor, and the grantee at the same time executes and delivers to the grantor an agreement under seal, conditioned to reconvey the same on the payment of a certain sum at a time stated, and there is no preëxisting debt due from the grantor to the grantee, and no testimony is offered explanatory of the transaction, it is for the jury to determine whether the parties intended the transaction to be an absolute deed with an agreement to reconvey, or a mortgage. Teal v. Walker, 111 U. S. 242, distinguished from this case. Wallace v. Johnstone, 129 U. S. 58, held to decide that, in the absence of proof, in such case, "of a debt or of other explanatory testimony, the parties will be held to have intended exactly what they have said upon the face of the instruments."

VOL. CXLIX-2

Statement of the Case.

THIS was an action at law instituted by Henry Gassert, Jacob Reding and James H. Steele, as plaintiffs, against Gustavus Bogk, as defendant, upon a lease of certain premises in the city of Butte, and also certain mining claims in Silver Bow County, wherein plaintiffs prayed judgment against defendant for the restitution of the premises, and for damages for the detention thereof at the rate of $500 per month.

The facts of the case were substantially as follows:

Gustavus Bogk, the defendant below, was the owner of a lot of ground in Butte City, Montana, upon which stood a public house known as the Virginia Chop House. He was also the owner of some mining claims, five in number, located in Summit Valley, Silver Bow County, Montana. Having become involved in debt and unable to hold the property, on May 19, 1885, he sold and conveyed by deed in fee, duly executed, an undivided half interest in the property to James H. Steele, one of the plaintiffs, for the sum of $7500; and, upon the same day, by another similar deed, he sold and conveyed the other half interest to Gassert and Reding, the other plaintiffs, for a like sum. These two amounts were paid to Bogk, and disbursed under his direction. By a separate and independent instrument in writing of the same day, the plaintiffs Gassert, Reding and Steele agreed to reconvey the property to Bogk, if, on or before the end of one year thereafter, he would pay to Steele the sum of $8967.50, and to Gassert and Reding a like sum. This sum of $17,935, in the aggregate, was the purchase price of the property, $15,000, with interest compounded thereon monthly for one year. The agreement of reconveyance recited the previous sale of the property, but made no mention whatever of any loan of

money.

Two days afterwards, namely, on May 21, 1885, Bogk took a lease of the property from Gassert, Reding and Steele for the term of one year, at a nominal rent of $450, payable on or before December 1, 1885, with a privilege of working the mines for his own use and benefit. Bogk never offered to repurchase the property, or tendered to the plaintiffs the sum of $17,935, or any other sum.

Statement of the Case.

Under this condition of things, the lease having expired, plaintiffs demanded possession of the property, and, upon the refusal of Bogk to comply with the demand, brought action before a justice of the peace, under a statute of Montana providing for summary proceedings against tenants holding over. Upon a plea of title interposed by Bogk, the suit was transferred to the district court of the proper judicial district, in accordance with the requirements of the statute, and was there tried before a jury. Plaintiffs proved the deeds of conveyance, the agreement to reconvey, the lease by them to Bogk, the rental value of the property, and then rested. Notice to quit and failure to surrender the premises had been averred in the complaint, and not being denied by the answer, under the provisions of the code of procedure in Montana, were taken as admitted. Thereupon counsel for defendant moved for a nonsuit upon the ground that the plaintiffs had not shown that they were ever entitled to the possession of the premises, or that the defendant had entered into possession under the lease, or that notice to quit or demand for the surrender of the premises had ever been given to defendant. The court overruled the motion for a nonsuit, and defendant excepted. The trial thereupon proceeded, and defendant introduced witnesses showing the value of the city property to be from $18,000 to $25,000, and the other property to be from $22,000 to $25,000, making in all, the lowest estimate at $40,000, and the highest at $50,000; that the negotiations commenced for a loan; that the object was to raise money to pay off mortgages, judgments, liens, etc., upon the property; that plaintiffs never had possession of any of it; that interest was computed upon the amount advanced; that the lease was given to secure the representation of the mining property and pay the taxes, and that the transaction was intended as a mortgage.

Plaintiffs thereupon introduced certain evidence in rebuttal, and the jury returned a verdict for the plaintiffs, awarding them restitution of the property and $2175 as rent of the premises from May 21, 1886. Upon this verdict judgment was entered, the case appealed to the Supreme Court of the

Argument for Plaintiff in Error.

Territory, and the judgment affirmed. Defendant thereupon appealed to this court.

Mr. Edwin W. Toole and Mr. William Wallace, Jr., for plaintiff in error, submitted on their brief, in which they contended as follows concerning the overruling of the motion for a nonsuit, and touching the effect of the conveyances:

The section of the statute of the Territory of Montana under which the motion for a nonsuit was made, is identical with the present Compiled Statutes of the State, and reads as follows: "Sec. 242. An action may be dismissed or a judgment of nonsuit entered in the following cases: Fifth, By

the court upon motion of the defendant, when upon the trial, the plaintiff fails to prove a sufficient case for the jury." The exception to the ruling of the court was taken by bill of exceptions in this case, embodying the evidence. In Kleinschmidt v. McAndrews, the Supreme Court of Montana held that this was improper under the practice of the Territory and that the question could only be reviewed on a statement on appeal. That case was brought to this court on writ of error, and as a court of appeals for the Territories, it reversed this decision of the territorial Supreme Court, and held that the exception was properly preserved under the practice act of the Territory. Kleinschmidt v. McAndrews, 117 U. S. 282. So that, notwithstanding the ruling of the Supreme Court upon this question of practice, this court has overruled the same, and we shall assume that the question is properly presented by the bill of exceptions referred to in the record.

Did, then, the deed and defeasance, or agreement to convey, per se constitute a mortgage? If they did, the lease could amount to no more than a security, as a mortgagee is never entitled to the rents and profits until he acquires actual possession. Teal v. Walker, 111 U. S. 242. That is a well-considered case, in which this court reviews the authorities at length and reaches the conclusion that the deed and agreement to reconvey constitute a mortgage, and that until foreclosure and sale the mortgagee would not be entitled to possession or the rents, issues and profits of the mortgaged premises.