Bogk v. Gassert

• Citation: 37 L.Ed. 631,149 U.S. 17,13 S.Ct. 738
• Decision Date: 17 April 1893
• Docket Number: No. 179,179
• Parties: BOGK v. GASSERT et al
• Court: United States Supreme Court

149 U.S. 17

13 S.Ct. 738

37 L.Ed. 631

BOGK

v GASSERT et al.

No. 179.

April 17, 1893.

Statement by Mr. Justice BROWN:

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 Siver 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 are substantially as follows:

Gustavus Bogk, the defendant below, was the owner of a lot of ground in Butte City, Mont., 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, Mont. Having become involved in dept, 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 $7,500; and, upon the same day, by another similar deed, he soid 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 $8,967.50, 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.

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 $2,175 as rent of the premises from May 21, 1886. Upon this verdict judgment was entered, the case appealed to the supreme court of the territory, and the judgment affirmed. 19 Pac. Rep. 281. Defendant thereupon appealed to this court.

E. W. Toole and Wm. Wallace, Jr., for plaintiff in error.

[Argument of Counsel from pages 20-22 intentionally omitted] M. F. Morris and W. W. Dixon, for defendants in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

The action in this case was upon the lease of a city lot and certain mining claims, and a judgment was demanded for the restitution of the premises, and for damages for detention. The answer set forth, in substance, that the lease was one of a series of contemporaneous agreements, consisting of two deeds, an agreement to reconvey, and a lease; that the deeds were intended as a mortgage, and that the rental of $450 named in the lease was the amount which it was understood would be necessary to pay the taxes upon the property, and the annual assessment work upon the mining claims, and that, upon payment thereof by defendant, Bogk, the object of the lease should be fully statisfied and discharged; that the defendant paid this sum; and that the said lease became void, and of no binding force.

The trial took place before a jury, and the assignment of error relates to the rulings of the court made in the course of such trial. We proceed to consider them in their order.

1. That the court erred in overruling defendant's motion for a nonsuit. In this connection the bill of exceptions shows that the plaintiffs put in evidence the deeds from Bogk and wife to the plaintiffs, the agreement to reconvey, the lease, with oral testimony of the rental value, and then rested. Defendant thereupon moved for a monsuit upon the ground that plaintiffs had failed to prove that they were ever at any time in, or entitled to, the possession of the premises; that defendant ever entered into possession under or by virtue of said lease: and that plaintiffs totally failed to prove a demand to have been made for the possession of the premises, or ever served or gave notice to quit upon the defendant. This motion was overruled. Defendant excepted, and proceeded to introduce testimony in defense.

The practice in Montana (Comp. St. § 242) permits a judgment of nonsuit to be entered 'by the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury.' Without going into the question whether the motion was properly made in this case, it is sufficient to say that defendant waived it by putting in his testimony. A defendant has an undoubted right to stand upon his motion for a nonsuit, and have his writ of error, ror, if it be refused; but he has no right to insist upon his exception after having subsequently put in his testimony, and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link; and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony. Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493; Insurance Co. v. Crandal, 120 U. S. 527, 7 Sup. Ct. Rep. 685; Railway Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. Rep. 321; Insurance Co. v. Smith, 124 U. S. 405, 425, 8 Sup. Ct. Rep. 534; Bradley v. Poole, 98 Mass. 169; Railroad Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. Rep. 591.

2. The second error assigned is to the admission of the conversation of the parties at the time of the execution of the instrument. Exception was duly taken upon the trial to the admission of this testimony. This exception does not seem to have been incorporated in either of the bills of exceptions, but in a 'statement on appeal,' which appears to have been settled and signed by the judge in the same manner as a bill of exceptions, and to have been treated as such by the supreme court of the territory. The Code of Civil Procedure of Montana provides (section 432) for a statement of the case to be used on appeal, which shall state specifically the particular errors or grounds upon which the appellant intends to rely, and which seems to take the place of an ordinary bill of exceptions. Under this Code, (section 628,) 'when the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties, and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases: Frist, where a mistake or imperfection of the writing is put in issue by the pleadings; second, where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in section 632, or to explain an extrinsic ambiguity, or establish illegality or fraud. The term 'agreement' includes deeds and wills, as well as contracts between the parties.'

In this case Bogk had been called upon as a witness for himself, and testified that he had applied to these parties for a loan, not a sale; that he wanted money to pay off parties whom he owed; that he first spoke to Gassert or to Steele, but there was a dispute whether he should pay 1 per cent. or 1...