[2] It is apparent from this evidence that the defendant was at fault in failing to turn reasonably to the right of the center of the highway, as is required by the statute. Laws 1913, c. 72, p. 158, § 1. He was on the wrong side of the way. Inasmuch as the collision occurred as it did on plaintiff's side of the way, defendant was also prima facie at fault in failing to exercise the precaution necessary to avoid frightening plaintiff's mule, and thus to insure plaintiff's safety. Id. c. 72, p. 159, § 3. company with others, about a quarter of a mile away coming from the opposite direction in an automobile. The automobile was owned by defendant and was driven by him. As the two vehicles were about to pass, the automobile came into collision with plaintiff's mule and vehicle, with the result that plaintiff was thrown to the ground and suffered concussion of the brain and contusions about other parts of his body. It is alleged that defendant caused the collision by his negligence in failing to turn the automobile far enough to his right to permit it to pass plaintiff's mule and vehicle in safety. In his answer defendant denied negligence on his part, and, by way of counterclaim, de manded judgment against plaintiff for dam-sciously guided the mule to his left, and thus age done to his automobile. The jury resolved the issues in favor of the plaintiff and awarded him a verdict. Defendant has appealed from the judgment and an order denying his motion for a new trial. [3, 4] Defendant endeavored to show that plaintiff was at fault in that he was asleep, and, being startled by the approach of defendant and the stopping of his mule, uncon caused it to come in collision with the automobile. The evidence on this point was in conflict, and whether the plaintiff was at fault, and thus brought the catastrophe upon himself, presented a question which it was the exclusive province of the jury to determine. The jury having resolved the issues in favor of the plaintiff, and their con in denying the motion for a new trial, it Affirmed. SANNER and HOLLOWAY, JJ., concur. (53 Mont. 474) MOTION TO HUFFINE et al. v. LINCOLN. (No. 3751.) [1] The only contention made on behalf of defendant is that the evidence was insufficient to justify the verdict. The testimony of the plaintiff showed that the accident occlusion having been approved by the court curred under these circumstances: The highway was in a lane 60 feet in width from fence to fence. It was graded up to a crown in the center, the drainage gutter on either side being 3 or 4 feet from the fence, and about 14 inches lower than the crown. The graded portion was about 50 feet in width. The line of principal travel, along which plaintiff was driving, was on the west side, to his right, and as near the fence as one could drive without encountering the bank of the gutter on that side. The part of the way to the east was not so much used, and therefore not so smooth, but was in good condition for travel. The defendant ap proached plaintiff along the line of principal travel on the west side until he was within 20 or 25 feet. He then turned his automobile to the right, but not beyond the center of the way, apparently intending to pass plaintiff without turning out further than was absolutely necessary to enable him to do so. As he was about to pass, plaintiff's mule became frightened. It first stopped, and then, in an effort to get away, turned to plaintiff's left. As this occurred, defendant's automobile collided with it and also plaintiff's vehicle, throwing plaintiff to the ground and injuring him as alleged. The automobile was turned upside down and came to rest in the middle of the way. Plaintiff had observed the approach of the automobile from the time it was a quarter of a mile away, but did not pay special attention to it, because his mule was accustomed to this kind of vehicle, and he assumed the defendant would take the other side of the way and thus accomplish the passage without trouble. The mule could not turn to the right because of the proximity of the fence on that side. 213(1) 2. EVIDENCE ADMISSIBILITY Under Rev. Codes, § 8040, providing that an offer of compromise is not an admission that anything is due, a compromise offer is inadmissible in evidence against the party making it. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 745, 748-750.] 3. NEW TRIAL 103 NEWLY DISCOVERED EVIDENCE-COMPROMISE OFFER. The discovery of a compromise offer, which would be inadmissible in evidence under the direct provisions of Rev. Codes, § 8040, cannot be the basis for granting a new trial under section 6794, authorizing new trials for newly discovered material evidence, etc. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 215-217.] Appeal from District Court, Fergus County; Roy E. Ayers, Judge. Action by Charles M. Huffine and Leonie Huffine against A. Lincoln. Judgment for plaintiffs, and defendant appeals from the [2, 3] The motion for a new trial was basjudgment and an order denying a new trial. ed solely on the ground of newly discovered The appeal from the judgment was dismiss- evidence material to establish defendant's ed, and, in the following decision, a motion to eighth counterclaim, which could not with dismiss the appeal from the order is denied reasonable diligence have been discovered and the order affirmed. and produced at the trial. The plaintiffs are husband and wife, the wife being defendant's daughter. Early in the year 1908 they and George Lincoln, a son of defendant, leased from him certain ranches, known as the Lincoln ranches, in Fergus county, with the farming implements, machinery, etc., owned by him thereon. The lease was oral. The terms of it are in some respects not clearly disclosed by the evidence; but it is Belden & De Kalb and E. K. Cheadle, all of Lewistown, for appellant. E. W. Mettler and J. C. Huntoon, both of Lewistown, for respondents. see, among their other obligations, assumed that of caring for defendant's herd of cattle, and in consideration of their services in this behalf were to have a half interest in the increase of it, in steers suitable for beef. This arrangement was, it seems, to continue for five years. At the end of 1908 George Lincoln ceased to be a party to the lease. Thereafter the lease arrangement was continued between the plaintiffs and defendant up BRANTLY, C. J. In this action the plaintiffs sought recovery of the defendant on two counts. The first was for a balance of moneys alleged to have been received by the defendant for the use and benefit of the plain-apparent that the plaintiffs and their colestiffs, in the sum of $2,329.08, this balance having been ascertained and awarded to plaintiffs by arbitrators to whom they and defendant had theretofore submitted their differences for final adjustment. The sec ond was for the sum of $408.23 alleged to have been due to plaintiffs for goods, wares, and merchandise sold and delivered by them to the defendant, and for the use of teams, wagons, harness, etc., furnished by them to the defendant at his special instance and re-to the latter part of the year 1912. Differquest. The defendant, answering, denied ences had arisen between them as to their that he owed any part of the balance de- respective rights and liabilities under the manded in the first count, save and except lease, and, in order to avoid litigation, on the sum of $87.57. He denied all the alle November 17, 1912, they entered into a writgations of the second count. By way of fur-ten agreement to submit all these differences ther defenses to both counts, he alleged 12 to arbitrators named by them, for final adwas agreed that the final separate counterclaims. To the fifth, sixth, justment. It eighth, ninth, tenth, eleventh, and twelfth of award should be filed with the clerk of the these the plaintiffs replied, averring that the district court and entry thereof made in the amounts demanded therein had all been in-judgment book by the clerk, under the procluded in the submission to the arbitrators vision of section 7370 of the Revised Codes. referred to in the first count of the complaint, The arbitrators having heard the evidence and had been adjusted and determined by and made their award, filed it with the clerk their award. As an additional defense to the on November 23d. This action was brought eighth count, they interposed a plea of the on May 19, 1913. The trial took place in statute of limitations. To all the others they March, 1914, ending on the 9th. interposed specific denials. A trial resulted in a verdict and judgment for plaintiffs for $2,336.15 and costs. The cause was brought to this court by appeals from the judgment and from an order denying defendant's motion for a new trial. The amount of recovery sought by defendant under the eighth counterclaim was $3,050, the proceeds of a sale of beef cattle by plaintiffs and their colessee during the year 1908 for which defendant alleged they had failed to account to him. There was a con[1] When the record on appeal was lodged flict in the evidence at the trial, both upon with the clerk, counsel for plaintiffs moved the question whether the sum demanded was for a dismissal of the appeal from the judg- due from the plaintiffs under the contract of ment on the ground that it had not been tak-lease, and upon the question whether they en within a year from the date of entry had accounted for it in the adjustment by (Rev. Codes, § 7099), and of the appeal from the arbitrators. the order on the ground that the record had not been filed with the clerk within 60 days after the appeal had been perfected, as prescribed by the rules of this court (rule 4, subd. 2, 44 Mont. xxvii, 123 Pac. x). The appeal from the judgment was dismissed on the ground stated in the motion; the court reserving decision as to the appeal from the order until final hearing. The motion in this behalf is denied, for the reason that the record had been filed with the clerk before the motion to dismiss was filed and notice of it given. Rule 4, subd. 3. The facts recited in the foregoing narrative are sufficient to make clear the purport of the affidavits presented in support of the motion. The affidavit of defendant, after a brief reference to the origin and character of his claim, and a specific averment to the effect that his right to the sum claimed had not been adjusted by the arbitrators, alleges: "On or about the 10th day of March, A. D. 1914, I discovered evidence which will establish the fact that the said moneys so received by the plaintiff Leonie Huffine from the affiant did not belong to her under the terms of the said lease. That on said 10th day of March, A. D. 1914, I discovered a memorandum in writing in An affidavit by George Lincoln states that he is acquainted with the handwriting of Leonie Huffine, that the memorandum quoted by the defendant was written by her, that he is familiar with the matter stated in defendant's affidavit, and that he believes those statements are true. which was shipped from the AL herd of cattle in the spring of 1908, or about the time the lease began." "No. 2. We turn over 1,075 head of cattle, including beef. We pay no rents or taxes; also we are to have all cattle which we may gather in excess of the 1,075 head of cattle, or $40 per head. We select a man, and Lincoln a man, they to select a third man, to cut and ship the beef. Neither Lincoln nor Huffine to have anything to do with the cutting or shipping of the beef. These men also count the cattle." The portions of these memoranda quoted are each followed by an enumeration of articles of personal property which were to be delivered to the defendant, including different kinds of grain, colts, and hogs, in case either offer should be accepted as the basis of settlement. The counter offer by defendant is the following: "A. Lincoln will settle upon following basis, if settled without litigation, to wit: (1) Huffine to pay all taxes for 1912. (2) Huffine to pay Huffine to pay his share on state land pur$3,000 for use of property present time. (3) chase. (4) Huffine to return 1,200 head of cattle; also all the stock and calves of thoroughbred cattle. (5) Huffine to return horses received and one-half increase. (6) Huffine to return 13 sows and 39 pigs. (7) Huffine to return enough hay to winter cattle and horses to May 1, 1913. (8) Huffine to return seed and feed grain that he had and used of A. Lincoln. (9), Huffine to repair ditch as agreed, or pay equivalent of it in money. If the Robbins desert is deeded back, waive claim on ditch." At the argument in this court, attention having been called to the denials in plaintiffs' affidavits that they had never made the offer quoted in defendant's affidavit, counsel for defendant admitted that the copy of the as plaintiffs' first offer, is a true copy of the original. Their argument, however, is that, if the memorandum had been brought to the The plaintiffs filed counter affidavits. That of Leonie Huffine recites that when the question of settlement arose between the plaintiffs and defendant, in order to avoid litigation, they made in writing mutual offers of terms of settlement, exact copies of which are attached; that no other offer was ever made; that in his counter offer the defendant made no mention of the sum of $5,300; that the parties could not agree upon a settlement upon the basis of any of the offers, and thereupon agreed to submit their differences to arbitration; that upon the hearing by the arbitrators evidence was given on both sides in relation to all the claims existing between the parties, including the claim for which recovery is sought in defendant's eighth memorandum attached to plàintiffs' affidavit, counterclaim; that the arbitrators made their award upon the evidence; and that such award is in full force and effect. It is further alleged that plaintiffs' offer was deliv-knowledge of the jury at the trial, the result ered to the defendant; that at all times after it was made he had full knowledge of its contents; that after it was made, and prior to the submission of their differences to arbitration, this plaintiff and defendant discussed it; and that the affiant never at any time made the offer to the defendant set forth in his affidavit, the only offer made by her being the one a copy of which she tenders with her affidavit. The affidavit of the plaintiff Chas. M. Huffine avers that a second offer was made to defendant, proposing terms of settlement different from those embodied in the one referred to by Leonie Huffine, which contained no reference to the sum of $5,300 adverted to therein. In all other particulars his affidavit agrees substantially with the affidavit of Leonie Huffine. Both the memoranda referred to are attached as exhibits to his affidavit. The material parts of the memoranda of the two offers are the following: "No. 1. We turn over 1,075 head of cattle and reserve the right to cut and ship the beef and agree to pay rents and taxes and return to Lincoln one-half of $5,300, or $2,650, which Geo. Lincoln and the Huffines received for the beef would necessarily have been a finding in favor of the eighth counterclaim, and hence that judgment would have gone for the defendant. This argument proceeds upon the assumption that the memorandum embodies a distinct admission by plaintiffs that the defendant is entitled to the proceeds of the sale made in 1908, and that upon another trial it will without question establish his right to recover them. If we accept the assumption of counsel as correct, the conclusion must follow, for, though the evidence is cumulative in character, the legal effect of it would be to overcome any denial of their liability by the plaintiffs. But the effect to be given to the writing is to be determined, not by looking alone to the excerpt referred to, but by an analysis of all the memoranda in connection with the circumstances under which they were written. There is an apparent inconsistency in the statements of plaintiffs as to all the circumstances, in that Leonie Huffine states that only one offer was made by plaintiffs and the counter offer by defendant, whereas Chas. M. Huffine states that plaintiffs made a second offer; neverthe less it stands admitted by the defendant, because he did not file an affidavit contradicting those of plaintiffs, that the memoranda were offers and a counter offer made in an effort by the parties to adjust their differences and thus avoid a resort to litigation. In legal effect, then, the offer of plaintiffs is not to be construed as an admission that anything was due defendant, but as an offer of a compromise. If, therefore, it had been offered in evidence at the trial it would not have been admissible. Rev. Codes, § 8040; Scott v. Wood, 81 Cal. 405, 22 Pac. 871; 1 Elliott on Evidence, 646; 2 Wigmore on Evidence, 1061. It would have been held wholly incompetent, and the like ruling would necessarily be made with reference to it on another trial. Hence it cannot be regarded as material within the requirement of the statute authorizing the granting of a new trial on the ground of newly discovered evidence. Rev. Codes, § 6794. Under the well-settled rule, newly discovered evidence, offered as a ground for a new trial, must not only be material, but so substantial in character that it would probably produce a different result on another trial. State v. Matkins, 46 Mont. 59, 121 Pac. 881, and cases cited. It is only when the application makes out a case of this degree of cogency that a trial court should be held guilty of an abuse of discretion in denying it. There must be an end to litigation. The prevailing party is presumptively entitled to the relief awarded him. The presumption thus established in his favor may not be overturned until a cogent reason appears why the discretion vested in the trial court should be exercised in favor of his adversary. Hence, no substantial reason appearing why plaintiffs should be deprived of their advantage, the application was properly denied. The order is affirmed. Affirmed. SANNER and HOLLOWAY, JJ., concur. (53 Mont. 481) ELLING et al. v. FINE. (No. 3752.) (Supreme Court of Montana. May 4, 1917.) 1. ESTOPPEL 70(3)-TITLE OF MORTGAGEEFAILURE OF MORTGAGOR TO ASSERT RIGHTS. If, on the face of a deed and contract concerning mining properties, the transaction clear ly amounted to a mortgage of the properties, the mortgagee got no title by failure of the mortgagor to assert his rights in the property as such, because once a mortgage always a mortgage. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 185, 186.] Defendant, who sold mining property, the buyer and his wife executing a contract to reconvey part of the property, so that prima facie the transaction was a sale with option to repurchase, was barred by laches from contending that the transaction was intended as a mortgage, a conclusion to reach which extrinsic evidence than 13 years while his grantee treated the propwas necessary, he having stood idly by for more erty as his own, spent money upon it, paid taxes and died, while his executors operated the property, improved it, and paid taxes, and while it passed through probate proceedings and was formally distributed. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1815.] 5. MORTGAGES 6082-LACHES-EXCUSE. That a grantor claiming his deed was a mortgage delayed in asserting his rights against his grantee and the latter's executor and heirs on account of lack of funds, because he "didn't want to start anything" until satisfied of his ability "to go through with it," was not an excuse for the mortgagor's laches in delaying to contend that the transaction involved was a mortgage. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1815.] 6. TRIAL 397(1)-FINDINGS-NECESSITY. Where defendant was barred by his laches from raising the question whether the transaction in suit was a mortgage or not, the trial court was justified in failing specifically to find on the subject. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 940.] Appeal from District Court, Madison County; J. B. Poindexter, Judge. Action by Mary E. Elling and others against Benjamin J. Fine. From a judgment for plaintiffs and an order denying new trial, defendant appeals. Judgment and order affirmed. S. V. Stewart and Geo. R. Allen, both of Virginia City, and Walsh, Nolan & Scallon, of Helena, for appellant. Hartman & Hartman, of Bozeman, for respondents. SANNER, J. In this case it is admitted by the pleadings, established by uncontradicted evidence, or found by the court: That the defendant, B. J. Fine (the appellant here), and one J. H. Pankey were, on January 28, 1895, 494.62, all incurred in the purchase, maintenance, and operation of certain mining properties situate in Madison county, among them ten unpatented claims and mill sites, 2. MORTGAGES 33(5)-NATURE OF TRANSAC-indebted to Henry Elling in the sum of $93,TION-DEED-CONTRACT TO RECONVEY. Where the owners of mining property executed a deed conveying separate lodes and mill sites, and the grantee and his wife executed a contract, agreeing to reconvey on payment only ten lodes and mill sites, comprised in a particular group, containing no reference to a loan, no referred to as the "Easton group," which are mention of any indebtedness, and no engagement the subject of the present controversy. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes On that day Fine and Pankey executed, and a * made large expenditures in mining, developing, and improving the same, such expenditures over and above all receipts derived therefrom amounting in 1899 to $52,627.93, which, with the purchase price, made a total of $146,122.55 and all this without accounting to any one. Meanwhile, and on February 21, 1896, there was issued to Henry Elling, and on March 23, 1896, by him recorded, a patent from the United States granting the Easton group in fee simple to him. The value of this property was always speculative and fluctuating in character, never demonstrably greater than $93,494.62. With full knowledge of all that had been or was being done, Fine and Pankey stood by demanding no accounting, questioning no act, offering no repayment, nor, save some verbal declarations to strangers made by Fine shortly before the * with plaintiffs brought this suit in February, 1913, interest on such amounts at the same rate." | had he or Pankey asserted any claim to the Other stipulations of this agreement are property, and Pankey does not now assert these: That Elling, if he worked the proper- any such claim. Fine's contention, as set ty, must do so "in miner-like fashion and in forth in his counterclaim, is that the transa manner conducive to the best interests of action whereby Elling became possessed of all the parties to the contract"; that any the property in question was intended as seprofits derived from such operations "shall curity for the repayment of the indebtedness be credited" on the sum fixed as the repur- then due from Fine and Pankey as above chase price (viz. $93,494.62); that the costs mentioned, and that said transaction thereof improvement and operation "shall be a fore amounts to a mortgage, from which he charge against the property and shall bear in- ought now to be permitted to redeem by payterest at the rate of 10 per cent. per annum" ing such sum as may, after accounting by that Elling "shall keep a just, true, and ac- the plaintiffs, be found to be still due. The curate account" of his receipts from and ex-trial court, though requested by both sides to penditures on behalf of the property; that "either party to this contract may negotiate a sale" of the property, "but no sale can be made by either without the consent of the other party in writing"; that if Elling "shall negotiate a sale * he shall receive one-third * of the proceeds over and above the sum of $93,494.62, with interest, find upon this contention, failed to do so specifically, but held that Fine is barred by laches from making this claim or asserting any right to or interest in the property, and also that his "cause of action set up in his counterclaim herein is barred by the provisions of the statute of limitations of this state" As the result plaintiffs were adjudgcosts, and expendi-ed to be the absolute owners of the property and their title to the same was quieted as against Fine. Hence these appeals. mortgage," plaintiffs had no title, and could get none by the failure of Fine to assert what was obvious on an inspection of the record. But such is not, upon its face, the effect of tures," but if Fine and Pankey should negotiate a sale, Elling "is to receive nothing" over and above said sum, with interest, costs, [1-3] We may premise at the outset that, and expenses; that Elling must maintain and if upon the face of the instruments the transdefend the title and possession of said prop-action, made up of the deed and contract, erty against all persons and protect it from clearly amounts to a mortgage, the judgment waste or destruction; and that Fine and is wrong; for, "once a mortgage always a Pankey, or either of them, shall have the right "at any time and at all reasonable times to enter upon the premises for the purposes of examination and inspection." Elling went into possession immediately, and from that time remained in the sole and exclusive possession of the property, working and developing it until his death in November, 1900. Thereafter the executors of his will continued to possess, operate, and develop the property, until by decree of the district court of Madison county it was formally dis-prised in the so-called Easton group. It contributed to the plaintiffs as heirs at law and devisees of Henry Elling, since which time the plaintiffs have possessed, operated, and developed the same. During the period elapsing since January 28, 1895, said Henry Elling, his executors, and these plaintiffs have paid the transaction. The deed is absolute and conveys 27 separate lodes and mill sites. The contract bears date two days later than the deed, and Elling's wife joined in its execution. Of the 27 lodes and mill sites it cov ers and agrees to reconvey only the 10 com tains no reference to a loan, no mention of any indebtedness, no engagement by Fine and Pankey to pay or do anything, although some of its provisions, such as those mentioned above, are remarkable; they are not necessarily inconsistent with its expressed |