Bogk v. Gassert

Syllabus

<p>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.</p> <p>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.</p> <p>An exception cannot be taken to “ a theory announced throughout ” an instruction of the court.</p> <p>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.</p> <p>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 óf a certain sum at a. time stated, and there is no preSxisting 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.</p> <p>Teal v. Walker, 111 U. S. 242, distinguished from this case.</p> <p>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.”</p>