of identity, handwriting, quantity, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness, and health; questions, also, concerning various mental and moral aspects of humanity, such as disposition and temper, anger, fear, excitement, intoxication, veracity, general character, and particular phases of character, and other conditions and things, both moral and physical, too numerous to mention." The correctness of this rule is settled beyond controversy. People v. Sehorn, 116 Cal. 503, 48 Pac. 495; State v. Dolan, 17 Wash. 499, 50 Pac. 472; 3 Wigmore on Evidence, § 1977; 17 Cyc. 91.

5. Thomas D. Long, an attorney, was employed by Mrs. McCabe, relict of James McCabe, the deceased, to assist in the prosecution, and from the record it appears that he assumed the role of leading counsel for the state and did most of the work of in

terrogating witnesses at the trial. During the course of the trial Mr. Long's conduct became the subject of many protests from counsel for the defendant, and it is urged that the district court abused its discretion in permitting him to continue in the case, and that his conduct was such as to prevent the defendant from having a fair trial. There may be some question as to whether these matters are properly presented in the record. This we do not determine. The matters are discussed as though properly before L, except that the attorney general contends that the objection to privately employed counsel appearing for the state should have been made before or at the time the trial commenced. The court compelled the state to call as one of its witnesses, Frank Roddy, as the only living eye-witness to the homicide except the defendant. Roddy appeared to be hostile to the state and friendly to the defendant. His testimony was very strongly in the defendant's favor. Almost as soon as he was called to the witness stand, there apparently developed a very bitter feeling of hostility between the witness and Mr. Long, who was interrogating him on behalf of the state. The witness was exasperating in his conduct towards the attorney, was extremely impertinent in his replies, and merited severe punishment by the court; but, instead of controlling the conduct of the case and requiring that the trial should be conducted in an orderly and decorous manner, the court seemingly permitted counsel and witness to violate almost every propriety of the court room with very mild rebukes, when any were administered. The court should have controlled the witness or should have punished him for contempt. But while the conduct of the witness was exasperating in the extreme, it did not furnish any provocation for the conduct of Mr. Long.

As illustrative of that conduct, it appears that soon after the witness was called to the witness stand he was asked a question to

which counsel for the defendant made an objection. Mr. Long said: "You compelled us to put this witness on." Mr. Downing, for the defendant, said: "The court compelled you." Mr. Long replied: "We don't vouch for this witness. He is yours. We don't think he can tell the truth." Later, the witness was asked a question to which he answered that he could not tell, and Mr. Long then propounded to him this question: "Q. Are you non compos mentis? Do you know anything at all?" It became a question as to which of two buildings the witness Roddy was near when the homicide was committed. He was asked a number of questions respecting this matter, and why he gave a different answer at the first trial from that given at the second. In explaining his answer he said to Mr. Long: "You told me you was positive it [referring to a particular building] was the building;" to which Mr. Long replied: "I wish to say that the witness unqualifiedly lied." In answer to one of Mr. Long's questions the witness said that at the former trial counsel had abused him, and called him a "self-deluded fool that knew nothing," to which Mr. Long replied: "And I think that." Again the witness was interrogated with reference to the two buildings mentioned before, and he repeated to Mr. Long that Mr. Long had told him that he was positive one building was the particular one near which Roddy was standing, to which Mr. Long replied: "I told you once this morning what I thought of you, and tell you now that you unqualifiedly lie."

On behalf of the state Mr. Long sought to get before the jury the fact that the deceased had left surviving him a wife and a small child. He proved this fact, over the objection of the defendant, by a witness, Eugene McCabe; but afterwards, on motion of counsel for the defendant, the court struck out all testimony relating to the family of the deceased. Thereupon Mr. Long immediately called Mrs. James McCabe as a witness, asked her a few questions relating to wholly immaterial matters, and, by questions evidently asked for that purpose, again got before the jury the fact that the deceased had left surviving him a wife and a baby. Upon objection by counsel for the defendant and on motion, this testimony was stricken out: Mr Long consenting that the answer to the last question he had asked should be stricken out. Misconduct of a prosecuting officer of the character shown above has quite uniformly been held sufficient to require a reversal of a judgment of conviction in the comparatively few instances where such misconduct has been manifested. It is the duty of the prosecuting officer to see that the defendant has a fair trial, and that he is convicted, if at all, only upon competent evidence, and to this end it is peculiarly incumbent upon the prosecuting officer to be fair and impartial. 12 Cyc. 571. It is highly improper for him to ask questions which he knows, or has

reason to believe, the court will not permit to be answered; and when the court has indicated its decision by a ruling, counsel should respect it. In State v. Rogers, 31 Mont. 1, 77 Pac. 293, this court reversed a judgment of conviction, because the county attorney asked a witness for the defendant certain improper questions which tended to degrade and discredit the witness. If the prosecuting officer did not wish the witness' statements to go unchallenged, he might have become a witness, and in a proper manner have denied them; but his abuse of the witness while acting as prosecuting officer was so extreme that it cannot be justified, and, when properly presented, such misconduct will always work a reversal of a judgment of conviction. 12 Cyc. 576, and cases cited. "It is the right of a witness to be protected from irrelevant, improper or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of justice require it; to be examined only as to matters legal and perti nent to the issue." Code Civ. Proc. § 3402. While these acts of misconduct did not pass wholly unnoticed by the court, they were not treated as they should have been, and the very leniency of the court might have been misunderstood by the jury to defendant's prejudice.

Error is predicated upon the refusal or failure of the court to require the jury to return a verdict upon the defendant's plea of former jeopardy. But we do not think this was error of which the defendant can complain. Had the court submitted the question to the jury for a verdict, it would have been compelled to instruct the jury to return such verdict in favor of the state upon that issue under the decision of this court in State v. Keerl, 85 Pac. 862, decided February 19 of this year, and opinion on motion for rehearing, filed April 30, 1906.

The judgment and order are reversed, and the cause is remanded for a new trial. Reversed and remanded.

BRANTLY, C. J., and MILBURN, J.,

concur.

(34 Mont. 285)

BARTELS v. DAVIS et al. (Supreme Court of Montana. June 22, 1906.) 1. CONTRACTS-SEPARATE INSTRUMENTS-CON

STRUCTION.

Where a note, deed, and defeasance were all executed at the same time, had reference to the same subject-matter, and were a part of the same transaction, the deed being intended as a mortgage to secure the note, the three instruments should be construed as one instrument, as provided by Civ. Code, § 2207.

[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 746-748; vol. 35, Cent. Dig. Mortgages, §§ 214, 215.]

2. MORTGAGES-DEFEASANCE AGREEMENT-OBLIGATION OF MORTGAGEE.

Defendants executed a note, binding themselves to pay plaintiff $300, with interest, on

or before November 14, 1903. Defendants also executed a deed to plaintiff to secure the note, and plaintiff executed a defeasance agreement reciting that, one of the defendants desiring to sell from time to time "during the life of this agreement" certain portions of the property conveyed, plaintiff would convey to any purchaser so obtained on receipt of $50 per lot, to be applied on the note. Held, that the phrase "during the life of this agreement" was limited to the time prior to the mortgagors' default in paying the note secured by the deed at maturity, and that plaintiff was not bound after such default either to accept less then the full amount due on the note or to convey a portion of the mortgaged property.

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by E. J. Bartels against Vernie A. Davis and another. From a judgment for plaintiff, defendants appeal. Affirmed.

McBride & McBride, for appellants. Peter Breen and Jeremiah J. Lynch, for respondent.

HOLLOWAY, J. On May 14, 1903, Vernie A. Davis and Sewell W. Davis executed and delivered to E. J. Bartels their promissory note for $300, due six months after date, with interest at 2 per cent. per month, and to secure the payment of said principal and interest at the same time executed and delivered to Bartels a deed, absolute on its face, conveying to him a large number of city lots located in the city of Butte. Contemporaneously with the execution of the note and deed there was executed by Bartels and Vernie A. Davis a defeasance agreement which refers to the note and deed, declares that the deed was intended only as security for the payment of the $300 and interest represented by the note, and then contains these recitals: "Whereas, the said Vernie A. Davis desires the right to sell from time to time during the life of this agreement, such portions of said property as she may be able to find a purchaser for, it is agreed, by and between the parties hereto, that upon the said Vernie A. Davis finding a purchaser for any one or more of the said lots hereinabove described, that the said first party will make, execute and deliver to the purchaser thereof, a proper conveyance, transferring said lot to said purchaser, upon the said Vernie A. Davis paying to the said E. J. Bartels, for each lot so sold the sum of fifty ($50.00) dollars, the said amount paid to apply upon the note hereinabove referred to. It is further expressly understood and agreed, that in the event of the said Vernie A. Davis paying or causing to be paid to the said E. J. Bartels, the amount of the said note, principal and interest, that thereupon the said E. J. Bartels will reconvey to the said Vernie A. Davis, or to the party named in writing by her, all of the real property hereinabove described, which shall not at said time have been sold under the terms of this contract hereinabove contained." On November 25, 1903, Bartels commenced this action to foreclose the mortgage, alleging

that the deed was intended to be and was in fact a mortgage, and that no part of the principal or interest represented by the note had been paid. The complaint is in the usual form. The defendants answered admitting the due execution and delivery of the note and deed; that the deed was understood to be a mortgage, and that no part of the principal or interest represented by the note and secured by the mortgage had been paid. The answer contains a denial that there is anything due to the plaintiff from the defendants or either of them, and a general denial of all the allegations of the complaint not specifically admitted or denied. The answer then sets forth as an affirmative defense the facts that the defeasance agreement was executed as herein set forth; that on November 15, 1903, a purchaser was procured for two of the lots described in the deed; that thereupon $100 was tendered to Bartels and demand was made upon him that he execute to such purchaser a deed for said lots; that Bartels refused to do so and claimed that he (Bartels) was the owner of the lots; and that by reason of Bartels' refusal to accept such tender and convey said lots and otherwise comply with the terms of such defeasance agreement, the defendant Vernie A. Davis suffered damages in the sum of $1,000. The prayer of the answer is that Vernie A. Davis be decreed to be the owner of the lots described in the deed and entitled to a conveyance thereof from Bartels, that she recover judgment against him for $1,000, and that he be adjudged not entitled to recover any sum of money whatever from either of the defendants. Plaintiff thereupon moved for judgment on the pleadings, upon the ground that the answer is frivolous, that it does not contain any denial of any material allegation of the complaint; and that it does not state facts sufficient to constitute a defense or counterclaim. This motion was sustained and judgment entered on the pleadings in accordance with the prayer of the complaint. From that judgment the defendants appealed.

In that portion of the defeasance quoted above, appears this language: "Whereas, the said Vernie A. Davis desires the right to sell from time to time during the life of this agreement," etc. The only question propounded for our solution is: What does the phrase "during the life of this agreement" mean? Appellants earnesuy contend that the life of the agreement extended over a period of eight years-the period fixed by the statute of limitations for the enforcement of the contract by plaintiff or until the agreement was extinguished by payment of the debt or was merged in a judgment. The note, deed, and defeasance all relate to the same matter and are to be taken and construed together. Civ. Code, § 2207. It is not contended that the defeasance agreement had the effect of extending the time

for the maturity of the note. It is conceded that the note matured on November 14, 1903. The note, deed, and defeasance all refer to the same subject-matter, and, in contemplation of law, constitute one agreement. Cornish v. Woolverton et al., 32 Mont. 456, 81 Pac. 4; 7 Cyc. 582, and cases cited. This is likewise conceded by appellants in their brief. This being so, the appellants, by their contention, place themselves in this somewhat awkward situation. In effect they say to Bartels: "We confess that we violated the terms of this agreement by our failure to pay the note on or before its maturity, but, notwithstanding our breach, we insist that you shall scrupulously keep or perform the agreement in all things by you to be kept or performed." It is elementary that upon the maturity of the note, Bartels had an absolute right to demand payment of the debt in full, and it would be altogether absurd to say at the same time, that he could be legally compelled to accept a part only. The one thing which the appellants bound themselves to do by this contract was to pay Bartels $300 with interest on or before November 14, 1903, and with respect to this they wholly failed to keep their agreement. The term or duration of the contract, so far as the Davises were concerned at least, was fixed at six months, or to and including November 14th. In view of these considerations, and in the absence of anything to indicate a contrary purpose, we hold that when the phrase "during the life of this agreement" was used, it was intended to designate the duration of the agreement, that is, the period of time during which the appellants, without having breached the contract themselves, might rightfully demand performance of its terms by the other party to it. Bartels was not bound to accept a partial payment of the debt after the maturity of the note, and the duty imposed upon him to execute the deed for the lots being conditioned upon the payment to him of $50 for each lot so sold, there was, therefore, no obligation whatever resting upon him to execute the deed for the two lots on November 15, 1903, after the debt had matured and the time had arrived when he could rightfully demand payment in full. It goes without saying that the provision for payment to Bartels of $50 for each lot sold as a condition precedent to his making a deed, means payment at such time and under such circumstances that he was legally bound to accept it. As he was not under obligation to accept a partial payment after the maturity of the note, he did not violate any legal right of the appellants in refusing acceptance and refusing to execute the deed, and therefore his refusal could not give rise to any claim for damages.

What is here said is to be understood only in view of the matters disclosed by this record. Whether the tender made before suit was brought, if kept good, would have operated to stop the interest on the $100,

need not be considered. The answer does not allege that the tender was kept good. The denial that there was anything due to the plaintiff at the time of the commencement of this action is the denial of a mere conclusion of law, and does not raise any issue. Neither was the general denial in the answer of any effect, for the answer admits all the material allegations of the complaint.

We are of the opinion that the answer did not state any defense or counterclaim, and that the court properly rendered judgment on the pleadings. The judgment is affirmed. Affirmed.

Where the evidence does not appear in the record on appeal, instructions, to be ground for reversal, must have been erroneous under any possible state of facts appearing at the trial. 3. MONEY PAID-ISSUES-APPLICABILITY TO PLEADING.

Where the complaint alleges that a corporation purchased stock for defendant at his instance and request, and that he agreed to pay for it, to which the defendant entered a general denial, the submission of the question whether it was purchased for the corporation does not present a new issue, since the defendant might have presented evidence to show that the corporation purchased the stock for its own

HOLLOWAY, J. The Donovan-McCormick Company brought this action to recover from the defendant Sparr the sum of $5,049.31, alleged to have been expended by the company for the use and benefit of Sparr and at his special instance and request. The complaint alleges that T. C. Power, Paul McCormick, A. C. Johnson, and defendant Sparr purchased 200 shares of the capital stock of the plaintiff company from W. H. Donovan for $20,197.23; that such stock was transferred to Paul McCormick, trustee, to be held for the parties named, in the following proportions: Power, 564 shares; McCormick, 564 shares; Johnson, 371⁄2 shares; and Sparr, 50 shares; that this stock was paid for by the plaintiff company at the special instance and request of the above-named parties; that defendant Sparr's proportion of the purchase price was $5,049.31, which he agreed to repay to the plaintiff, but failed and refused to do so. The answer admits that the plaintiff company paid for the stock mentioned the sum of $20,197.23, but denies every other material allegation of the complaint. The trial of the case resulted in a verdict and judgment in favor of the defendant, from which judgment the plaintiff appeals.

The record consists of the judgment roll. without any bill of exceptions, and, of course, does not present any of the evidence. The errors assigned are the refusal of the court to give plaintiff's requested instruction No. 7, and the giving of instructions Nos. 6, 7, 8, 9, 10, and 11. Plaintiff's requested instruction No. 7, which was refused, is as follows: "You are further instructed that if you believe from the evidence that the said 200 shares of stock were purchased for the said A. C. Johnson, T. C. Power, Paul McCormick, and the defendant, C. W. Sparr, and held in trust by the said McCormick for the said parties, that the defendant is bound to pay his proportion of the said sum of $20,197.23, which he admits that the plaintiff paid for said stock." If we assume that the particular 50 shares of stock were purchased for Sparr and that McCormick holds them in trust for him, still the showing of these facts alone would be wholly insufficient to charge Sparr with their purchase price. They may have been purchased for him without his knowledge or consent. He may never have requested that they be purchased for him, and he may never have agreed to pay for them. Any controversy over this subject, however, is set at rest by the recent decision of this court in Smith v. Perham, 33 Mont. 83 Pac. 492. In that case the court instructed the jury that, if the plaintiff delivered the goods to defendant and defendant received them, he must pay for them. The giving of this instruction caused a reversal of the judgment. Among other things, this court said: "It is elementary that before a plaintiff can prevail he must put the defendant in the wrong. * * * In order to charge the defendant, the complaint must set forth an express con

** * *

tract, or a request, expressed or implied, on the part of the defendant for the goods, or the delivery of the goods by the plaintiff and a promise, expressed or implied, on the part of the defendant to pay therefor. The mere delivery of goods by one person to another is not of itself sufficient to create a liability for their value. The delivery to and an acceptance by the intended purchaser must have occurred under such circumstances that the law will imply a promise to pay for them. One may not make himself the creditor of another by officiously delivering to such other person goods of whatever character." In 2 Greenleaf on Evidence (16th Ed.) § 107, it is said: "In actions upon the common counts for goods sold, work and materials furnished, money lent, and money paid, a request by the defendant is material to be proved; for ordinarily no man can make himself the creditor of another by any act of his own, unsolicited and purely officious." In Boyer v. Richardson, 52 Neb. 156, 71 N. W. 981, the same rule is announced as follows: "It is elementary law that in order to recover money paid to the use of another, where the party paying was under no obligation so to do, the payment must have been moved by a previous request from the party to whose use the money was paid. In some cases a previous request will be implied, as where the money was obtained by duress either of a person or property, or by deceit, or where there has been a subsequent express promise to repay the money, as was the case in Stuht v. Sweesy, 48 Neb. 767, 67 N. W. 748. But where the payment is entirely voluntary -where there is no subsequent promise to repay-a previous request must be proved." In considering this same question, though presented by the pleadings, the Supreme Court of California, in Curtis v. Parks, 55 Cal. 106, said: "The complaint failing to show any agreement or understanding by which the plaintiffs were authorized to pay the defendant's part, or any promise by the latter to repay, it fails to show any right in plaintiffs to recover what must be regarded, as the case is presented by the complaint, as a voluntary payment. No man can be a debtor for money paid, unless it was paid at his request." The court properly refused this requested instruction.

2. While errors are predicated upon the giving of instructions 6, 7, 8, 10, and 11, these instructions are all considered together, and Nos. 6 and 7 fully present all questions argued. They are as follows:

"(6) The question for your determination in this case is as to whether the plaintiff company, at the time of the transfer of the 200 shares of its capital stock from W. H. Donovan to Paul McCormick, trustee, paid what it did pay for the same because it had purchased said stock to be held as its own or like treasury stock, and to be disposed of as its board of directors should order, or whether the stock was purchased by the de

fendant, Sparr, and the other stockholders in the proportion of their then holdings; each being entitled to dispose of his own share as he saw fit, the plaintiff corporation paying for the same at the request of the purchasers and for their accommodation.

"(7) The burden of proof is on the plaintiff to show that it did not buy or own the Donovan stock, and that when it paid for the same it was not paying its own obligation or indebtedness, but advanced the money as an accommodation to the defendants Power, McCormick, and Johnson, who were purchasers of the same; and the plaintiff must satisfy you by a preponderance of the evidence that it did not buy said stock, but simply advanced to the persons last named, at their request, the money to buy the same; and if you believe the weight of the evidence is against the contention of the plaintiff in that regard, or if you believe the evidence in respect to the matter to be evenly balanced, or if you are unable to say from the evidence what the truth of the matter is, your verdict should be for the defendant."

In State v. Mason, 24 Mont. 340, 61 Pac. 861, this court, speaking through Mr. Justice Word, quoted with approval, and specifically adopted, the rule announced in People v. Levison, 16 Cal. 98, 76 Am. Dec. 505, as follows: "It is true, there is no statement in this case. But, when the instructions are erroneous under any and every state of facts, then this court will review them. For it follows as necessarily in such a case that the court erred to the prejudice of the defendant, when there is no statement, as when one exists. If, however, the instructions may be correct under any supposed state of facts, as the appellant must show affirmative error, we presume in favor of the judgment below, and will not reverse the judgment when no statement appears." In 1 Blashfield on Instructions to Juries, § 375, it is said: "So, where the instructions would be correct under a possible state of facts, and the evidence is not all before the court, it will be presumed that the evidence was such as to justify the giving of the instructions. This presumption is rebutted, however, where the record purports to contain all the evidence, or where it is apparent that the instructions would be improper under any possible state of the evidence under the pleadings." In order, then, to reverse this judgment, we are required to say that these instructions given would have been erroneous under any possible state of facts appearing at the trial of the case. The argument of counsel for appellant is that these instructions introduced into the case an issue not raised by the pleadings, imposed upon the plaintiff the burden of proving such issue, and required the plaintiff to prove a negative. To what extent, if any, instructions may properly be given with respect to matters not strictly within the issues made by the pleadings, need not be considered.