#### TAGUE, Respondent, v. JOHN CAPLICE COMPANY, Appellant.

(No. 1,501.)

(Submitted March 20, 1903.

Decided April 27, 1903.)

*Corporations*— Borrowing *Money*— Officers — *Powers*— Action *—Continuance—Absence of Witness*— Admissions—Effect— *Evidence*— Pleadings *in Other Suits*— Issues—Withdrawal *—Appeal—Misconduct of Court*— Preservation—Affidavits *—Review.*

1. where, in an action for money loaned, defendant claimed that plaintiff and C. were partners, and that the money was loaned by plaintiff to be used in their business, and thereafter the notes of a third person who conducted the business for the firm were received by plaintiff in settlement of the advancement, a verified complaint in an action by defendant against the wife of such manager, in which defendant claimed to be the owner of such business, was admissible.-

*2.*Where defendant’s articles of incorporation provided that it was organized to buy and sell wood, etc., and the minutes of a stockholders’ meeting showed a motion, duly passed, ratifying certain contracts modifying a prior contract with N. employing him to manage the business, such contracts were not objectionable on the ground that their execution by the officers of the company were acts *ultra vires.*

*3.*In the absence of any proof to the contrary, the executive officers of a corporation executing a contract under the corporate seal, in the name and’ on the behalf of the corporation with reference to business comprehended in the articles of incorporation, and in which it is shown that the corporation is actually engaged at the time, will be presumed to have full authority to bind the corporation by such act, and by the declarations and admissions contained in the contract itself, hence such contract is not objectionable for failure to prove the authority of the officers to execute the same.

4. The admission of evidence in chief for the purpose of disproving an affirm-tive defense contained in defendant’s answer, which would have been proper in rebuttal, was not error.

5. Under Code of Civil Procedure, Section 1172, providing that when an application for a new trial is made for irregularity in the proceedings of the court, or for an abuse of discretion, it must be made on affidavits, an alleged error, consisting in the use of certain language by the court in the presence of the jury during the trial, cannot be reviewed, where the error is not preserved and brought into the record by affidavit.

6. The exclusion of evidence cannot be reviewed where no offer -to prove the facts sought to be elicited by the excluded interrogatory was made.

7. The exclusion of impeaching evidence was not error where the offer of proof did not fix the time when the alleged conversation occurred, or designate the persons present, and no foundation was laid therefor in the examination of the witness sought to be impeached, as required by Code of Civil Procedure, Section 3380.

*528. Under Code of Civil Procedure, Section 1039, the fact that plaintiff admitted that defendant’s absent witnesses would testify as alleged, if present, did not deprive plaintiff of the right to object to the competency, relevancy, and materiality of such facts.

9. Where evidence excluded by the trial court is not in the record, the alleged ■ error of the court in excluding it cannot be reviewed.

10. Where, in an action for money loaned, there was no evidence that plaintiff had any knowledge that defendant intended to loan the money to N., or that plaintiff had agreed to accept N.’s notes in payment of the loan to defendant, the notes executed by N., some of which were made payable to defendant, and some to plaintiff by direction of defendant’s trustees, without authority from plaintiff, were inadmissible.

11. where there was no evidence whatever on an issue raised by the pleadings, it was proper to withdraw such issue from the jury.

*Appeal from District GowrtSilver Bow County; John Lindsay, Judge.*

ActioN by Tbomas Tague against the John Caplice Company, a corporation. From a judgment in favor of plaintiff, and from an order denying its motion for a new trial, defendant appeals.

Affirmed.

STATEMENT OE THE CaSE.

This action was commenced in the district court by the plaintiff, Tague, against the John Caplice Company, a corporation, to recover a balance of $10,842.32, alleged to be due the plaintiff for moneys loaned by him1 to the defendant company. The answer denies the material allegations of the complaint, and sets up these affirmative defenses: First. That the plaintiff, Tague, and John Caplice had been engaged in the wood business at Bernice, J efferson county, Montana, and that all moneys mentioned in plaintiff’s complaint were by the plaintiff, Tague, delivered “to" this defendant, to be by this defendant used for the benefit of said plaintiff and of the said John Caplice in carrying’ on the said wood business and in paying the expenses thereof.” Second. That Tague and Caplice entered into net-gotiations with one Hiram Nelson to conduct the wood business.1 for them, and that Nelson, to secure the necessary means to carry on such business, borrowed this money and executed his promissory notes therefor; that such notes were transmitted *53to this defendant company, by it delivered to the plaintiff, and by the plaintiff accepted and received as payment and settlement in full for all moneys so advanced by him. When the cause came on for trial, the defendant company made a motion for continuance upon the ground of the absence of tvro witnesses, J. Eoss Clark and J. X. Heslet. The application was made upon an affidavit setting forth the facts to which these witnesses would testify if present in court. Thereupon the plaintiff admitted that, if the witnesses were present, the evidence would be offered as set forth in affidavit, but to certain portions of such evidence the plaintiff reserved the right to' object when it was offered. Thereupon the court overruled the motion for continuance, and the cause proceeded to trial. The court, after defining the issues raised by the pleadings, instructed the jury that no evidence had been offered to establish the fact that any association had ever existed between the plaintiff and John Caplice in the wood business, or that any of the moneys loaned by the plaintiff had ever been paid by the notes of Hiram Nelson, or otherwise, and directed the jury to disregard those defenses set forth in the defendant’s answer, and that the only question before them for determination was whether the money was loaned to the defendant, John Caplice Company, and that the burden of proof was upon the plaintiff to establish this fact. The jury returned a verdict in favor of the plaintiff for the full amount claimed, and from the judgment entered thereon, and from an order denying its motion for a new trial, the defendant has appealed. .

*Mr. Jesse B. Boote,*and *Mr. W. A. Clark, Jr.,*for Appellant.

Whether a note is taken in payment of a debt is a question for the jury. *(Crabtree*v. *Bowand,*33 Ill. App-. 423; *Goldshede*v. *Cottrell,*2 Mees, and W. 20; *Lyman*v. *Bank of U. S.,*12 How. (U. S.), 225; *Myatts*v. *Bell,*41 Ala. 222; *Casey*v. *Weaver,*141 Mass. 280; *Comer*v. *Bratt,*138 Mass. 446; *Cobum v. Odell,*30 N. H. 540, 557; *Johnson*v. *Cleaves,*15 N. H. 332; *54*White*v. *Jones,*38 Ill. 159; *Bonnell*v. *Ghamjoerlain,*26 Conn. 487; *Susquehanna Fertilizer Go-,*y. *White,*66 Md, 444, 59 Am. Rep.. 186; *Solomon*v. *Pioneer Co-Operative Co.,*20 Fla. 374, 58 Am- Rep. 667; *Bullen*v. *McGilcuddy,*2 Dana (Ky.), 91; *Gardner*v. *Gorham,*1 Dougl. (Mieb.), 207; *Kerl*v. *Bridgets,*10 Smed. & M. (Miss.), 612; *Seltzer*v. *Goleman,*32 Pa. St. 493; *Horner*v. *Hower,*49 Pa. St. 475; *Brown*v. *Scott,*51 P'a. St. 357; *Union Bank*v. *Smizer,*1 Sneed (Term.), 501; *Johnson y. Weed,*9 John. (N. Y.), 310; sama ease reported in 6 Am. Decisions, 279.)

If a note of a third person is taken for a debt, snob note will be deemed to bave been accepted by tbe payee in payment, unless tbe contrary be expressly proved. *(Whitbeck*v. *Van Hess,*11 John. (N. Y.), 409; also 6 Am. Dec. 383; *Melledge*v. *Boston Iron Go.,*5 Cusb. (Mass.), 158, 51 Am. Dec. 59; 2 Benjamin on Sales, 6th Ed., 938; 18 Am. & Eng. Ency. of Law, 169.)

If tbe question of whether a note was accepted in payment is a question for tbe jury, then evidence of any fact tending to prove that question is competent to go¡ before tbe jury in determining tbe ultimate fact. It is not necessary to prove an express agreement to tbe effect that tbe note was. taken in settlement ; this fact may be proven by facts and circum'stances surrounding each case; said question is one of fact for tbe jury. *(White y. Jones,*38 Ill. 159; *Holchin y. Secor,*8 Micb. 494.)

Where there is evidence tending to prove a fact having an important bearing upon tbe law of tbe case, though strongly contradicted, an instruction is erroneous which ignores tbe existence of such a fact, and takes it from tbe consideration of tbe jury. *(Ghicago P. & P. Go.*v. *Tilton,*87 Ill. 547.)

When tbe evidence tends to prove a certain state of facts, tbe party in whose favor it is given has a right to bave tbe jury instructed on tbe hypothesis of such a state of facts, and leave it to the jury to find whether tbe evidence is. sufficient to establish tbe facts supposed in the instruction. If the instructions are pertinent to any part of tbe testimony, they should, if cor*55rect, be given without! regard to> the amount of evidence to which they apply. *(Griel*v. *Marks,*51 Ala. 566; *State*v. *Gibbons,*10 la. 117; *Kendalls. Brown,*74 Ill. 232.)

When an instruction is. asked upon a question concerning which there is no direct testimony, yet if there be any proof tending to establish it, such question should be submitted to the jury, as the party asking instruction is entitled to the benefit of whatever inference the jury may think proper to draw from the proof, however slight. *(Peoria Ins. Go.*v. *Anapotu,*45 Ill. 87; *Flournoy*v. *Andrews,*5 Mo. 513; *Gamp*v. *Phillips,*42 Ga. 289.)

The instructions of the court should be restricted to the issues made by the pleadings, and to the evidence. *(Nollen*v. *Wisner et ad.,*11 la. 190; *Iron Mount. Bank*v. *Murdock,*62 Mo. 70.)

If there was any evidence in this case — and there certainly was an ample amount of it — which tended in the remotest degree to- prove that T'ague accepted the notes in question as payment, then he could'not recover in this case if the jury would so find, and the court should have instructed the juiy upon all the facts pertinent to the issues of which there was any evidence to support them. *{Eli*v. *Tollman,*14 Wis. 28; *Hill*v. *Can-field,*56 Pa. St. 454; *Howe 8. Mach. Go.*v. *0. Laymen,*88 Ill. 39; *Atkins*v. *Nicholson,*31 Mo. 488; *Toledo, etc. By. Co.*v. *Shuckman,*50 Ind. 42; *Wabash Bd. Go.*v. *Henks,*91 Ill. 406.)

The charge of the court should be strictly confined to matters of law, and it is erroneous for the judge to tell the jury what facts are proved and what are not. The court has no> authority to instruct the jury as to what the evidence proved. *{Buss*v. *Steamboat, etc.,*9 la. 374; *Thompson*v. *Hovey,*43 Ill. 198; see note to Section 1080, pp. 259 to 262 of the Code of Civil Procedure of Montana, 1895.)

It is error for the court to take from the consideration of the jury any evidence that tends to' prove a fact, though strongly contradicted, that has an important bearing on the case. *{Chicago P. & P. Ga.*v. *Tilton,*87 Ill. 547.)

*56Tbe province of tbe court is to- instruct the jury as to tbe law of tbe case and tbat of tbe jury to find tbe facts proven by tbe evidence. It is error for tbe court in giving an instruction to assume-that facts have been proved or not proved or tbat a certain state of facts exists. *(Bussell*v. Minteer83 Ill. 150; *Stier*v. *The- City, etc.,*41 la. 353; *Siebert*v. *Leonard.*21 Minn. 442.)

It is error to tell tbe jury, without qualification, tbat tbe evidence raises a presumption of a particular fact, or is sufficient to justify finding a particular fact, if it raises not a presumption of law, but only a presumption of fact on which they might' find either way. *(Stone*v. ’ *Geyser Q. M.*Co52 Gal. 315 ; *Allison*v. *State,*42 Ind. 354, 351; *Read*v. *Kurd,*7 Wend. 408.)

If tbe court instructs tbe jury tbat tbe matters given in evidence are conclusive on tbe one side, and tbe matters given in evidence on tbe other side are not sufficient, and that if tbe jury agree with him in opinion they ought to find so and so, without more, it is error. *{Firemen1s Ins.*Co-. v. *Walden,*12 John. 513, 7 Am. Dec. 340; *Gordon*v. *Little,*8 Serg. & R. 533, 11 Am. Dec. 632; *Allis*v. *Leonard,*58 N. T. 288 ; *Massoth*v. *Delawcure & K. 'C. Co.,*64 N. Y. 524, 533.)

It is a settled: rule of law as old almost asi the law itself, that in trials by a jury, tbe judge decides questions of law and tbe jury questions of fact. (Coke on Littleton, 155-156; Foster’s Cr. Law, 256.)

The jury, in action at law, are judges of the facts, and tbe judge has no power or right to give binding instructions, where no conclusive fact is proven; and even if be thinks tbe testimony to establish a material fact was incredible be cannot instruct tbe jury to cast it aside. *{Curry*v. Curry, 114 Pa. St. 367.)

Tbe court has no right to direct as to tbe weight tbe jury shall give to any evidence submitted to them. *{State*v. *Iloffman,*(Oregon), 16 Pac. Rep-. 640.)

“Where tbe evidence conflicts without any apparent prepon-*57deranee on either side, it was error to instruct the jury to find ■for the defendant.” *(Adams*v. *Berg*(Miss.), 3 So. Rep. 465.) In other words, the court must not invade the province of the jury. (Note 2, page 238 of Vol. 11, 1st Ed. Am. & Eng. Enoy. ■of Law.)

It is the duty of the court toi instruct upon whatever state of facts there is evidence tending to prove and the-instructions .should be confined to the issues. (Proffat in Jury Trial, Sec. •313; *Nollen*v. *Wisner,*11 Iowa, 190; *King*v. *King,*37 G-a. 205; *Miles*v. *Douglas,*34 Conn. 393; *Hill*v. *Canfield,*56 Pa. 'St. 454; *Hooker*v. *Johnson,*6 Fla. 630.)

The judge in this case was not bound to sum up the evidence, much less strike any of it out, but as he did so- he should have presented all the material facts under the issues and not have instructed the jury upon any isolated facts, and should not give undue prominence to certain portions of the evidence; and if he assumes to state the evidence to1 the jury it is his duty to state all the evidence to them fairly and candidly -without striking out any or giving undue, prominence to any part of it. (Thompson, Charging the Jury, 109, 111; *State*v. *Norris,*3 Ilawks (N C.), 390; *Penn. B. Co.*v. *Zebe,*33 Pa. St. 318.)

The judge should not frame his instructions as to assume a •■disputed state of facts as proven. This rule is of equal appli•cation in both civil and criminal cases. *(Seibert*v. *Leonard,*21 Minn. 442; *Straus*v. *Mmzesheimer,*78 Ill. 492; *Boddie*v. *•State,*52 Ala. 395; *Wash., etc. B. Co•.*v. *Cladmon,*15 Wall. (IJ. S.), 401; *N. Y. Life Ins. Co‘.*v. *Baker,*94 H. S. 611; *Peck*v. *Bilchey,*66 Mo. 114; *Gaither*v. *Martin,*3 Md. 162; *.State*v. *Kennedy,*7 Nev. 374; *Kinney*v. *Williams,*1 Colo. 191; *Wall*v. *Goodenough,*16 Ill. 415; *Walters*v. *Chicago, etc. B. Co.,*41 Iowa, 71; *McDonald*v. *Beal,*55 Ga., 288; Chapter of Instructions in Vol. 11, page 236 of the 1st Ed. of the Am. ■& Eng. E'ncy. of Law, and Chapter 18 of Hayne on New Trial and Appeal, Sec. 120, page 329.)

The court erred in sustaining the objections made by counsel ■for plaintiff to the evidence offered on the part of defendant. *58(Nice on Etddeuce, Yol. I, Chap. XI5 p. 431; *Plainer*v. *Plainer,*78 N. Y. 90; *Trull*v. *True,*33 Me. 367; 3 Wait, L *&*Pr.,. 272; *Hart*v. *Newland,*3 Hawks. 122; *Home Ins. Oo.*v. *Weide*(78 U. S.’).ll Wall. 438; *Hagerty v. Andrews,*94 N. Y. 195;: Pice on EMdence, Yol. I, Chap.. XII, p.. 488.)

*Mr. W. W. Dixon,*and *Messrs. McHatton & Goiter,*for Hasp ondent.

ME. JUSTICE HOLLOWAY,

after stating the case, delivered the opinion of the court.

Upon the trial the plaintiff offered in evidence a complaint in an action commenced by the defendant herein, the John Caplice Company, against Fannie Nelson, in the district court of Silver Bow county, on May 18, 1896, in which complaint the John Caplice Company claimed to be the owner of the wood business at Bernice, Jefferson county, Montana, which complaint contains copies of two contracts purporting to' have been executed between the John Caplice Company and Hiram Nelson with reference to the wood business, at Bernice. The complaint further claimed that the defendant, Fannie Nelson, was attempting to assert ownership, to the wood and to dispose of it, and asked that by a decree of the district court the John Caplice. Company be declared to be the owner and entitled to. the possession of such wood. This complaint was verified by the secJ retary of the company. This evidence was objected to as immaterial and incompetent, and upon the ground that the contracts set out in the complaint show that their execution by the officers of this defendant company were acts *ultra wires.*The objection was overruled, and error is now assigned.

We think the evidence was properly admitted. It is a well-settled rule that declarations or admissions of a party made in pleadings are admissible against him in another action in behalf of a stranger to the action in which such pleadings were filed, if they were verified by the party or prepared under his instructions. *(Pope*v. *Allis,*115 U. S. 363, 6 Sup Ct. 69, 29 *59L. Ed. 393; *Hyman*v. *Wheeler*(C. C.), 29 Fed. *347; St. Louis Mutual Life Ins. Co.*v. Cravens, 69 Mo. 72; *Elliott*v. Hayden, 104 Mass. 180.) Tbe contracts referred to' in tbe complaint were made with reference to tbe wood business at Bernice, one dated December 10, 1894, and tbe other dated April 6, 1895, wbicb referred to tbe same subject-matter, and purported to modify somewhat tbe terms of tbe prior contract. Tbe order of proof may have been somewhat irregular, but in view of tbe fact that plaintiff immediately offered in evidence tbe articles of incorporation of the John Caplice Company, which, among other things, provided that tbe objects for wbicb tbe corporation was organized were “to buy and sell wood and lumber and building material of whatever kind, to' establish, conduct and carry on the business of cutting', buying and selling and manufacturing cord wood,” etc., and further offered in evidence tbe minutes of the meeting of tbe stockholders of such corporation showing tbe election of officers, and wbicb minutes contain this recital: “It was moved by John Branagan that tbe contract dated tbe 10th day of December, 1894, made between tbe John Caplice Company, a corporation, party of the first part, and Hiram Nelson, party of tbe second part, be approved and ratified. Tbe motion was seconded by Arthur H. Wethey, and was carried unanimously” — which minutes were signed and attested by tbe president and secretary of tbe corporation — we cannot say that tbe district court, erred in its ruling.

Tbe plaintiff also offered in evidence a contract between tbe John Caplice Company and Hiram and Fannie Nelson, dated July 8, 1896, wbicb provided for the compromising of certain lawsuits, and which contract further contained tbe provision that the Jobn Caplice Company was at that date the owner of tbe wood business at Bernice, and further provided for tbe disposition of tbe wood. This contract recited that tbe John Cap-lice Company made tbe contract, and caused it to be executed by its president and secretary, by whom it was signed, and to wbicb tbe corporate seal was attached. To this offer tbe defendant company objected on the ground “that it does not appear *60that the party executing this contract as. president of the John "Caplice Company had any authority to do so.” This objection was overruled and exception taken, and it is now urged that the •district court erred in permitting this evidence to go to the jury. We think there is no merit in the contention. The record of the proceedings of the organization of the corporation, the election of its officers, the adoption of its corporate seal, a copy of its articles of incorporation, and evidence that the company1 was actually engaged in the wood business at Bernice', had all been introduced, and the contract was signed by the executive officers designated by the trustees of that company and attested by the corporate seal, and, in the absence of any proof to the contrary, the executive officers of a corporation executing contracts in the name and on behalf of the corporation with reference to business comprehended in the articles of incorporation, and in which it is shown that the corporation was actually engaged at the time of the execution of such contracts, will be presumed to have full authority to bind the corporation by such acts, and by the declarations and admissions contained in the contracts themselves. (4 Thompson on Corporations, Sec. 5106.)

Objection was made to all of this documentary evidence on the ground that it was immaterial, and, soi far as this objection is concerned, we may say that we are of the opinion that the plaintiff assumed a burden which it was not necessary for him to do. At the beginning of the proceedings the defendant had asserted in an affirmative defense that the wood business at Bernice was carried on by the plaintiff herein and one John Caplice, and it was not necessary for the plaintiff to .offer evidence to ■dispute that, or to show that as a matter of fact such wood business was actually carried on by the John Caplice Company, until after the defendant'company had offered some evidence in support of such affirmative defense; in other1 words, this evidence was propeady rebuttal, but it was directed to' an, issue fairly raised by the pleadings, and no possible harm could have been suffered by the defendant by reason of the fact that the plaintiff was assuming the burden, in the first instance, of dis*61proving an affirmative defense' contained in tbe defendant’s answer by evidence which would have been perfectly proper in rebuttal. If there wias error at all, it was in the order of proof, and entirely without prejudice.

During the progress of the trial, in a colloquy between the court and counsel, the court made use of certain language in the presence of the jury, to> which the defendant took exception, and it is now urged that this was prejudicial error. . If error, it was because of an irregularity in the proceedings of the court, or an abuse of its discretion, as specified in Section 1171 of the-Code of Civil Procedure, and such error can only be saved and brought into the record on appeal to this court by affidavit. (Section 1172, Code of Civil *Procedure; Coleman*v. *Perry,*28 Mont. 1, 72 Pac. 42.) This was not done, and the alleged error is not, therefore, before us.

TJpon the examination of the witness Corbett for the defendant, this question was asked: “Did you ever have any conversation with Mr. Caplice, or hear Mk*. Caplice have any conversation, regarding this wood business that is in litigation in this case, at any time?” An objection to the question was sustained, and error is now predicated upon such ruling. No offer to prove the facts sought to be elicited by the question was made, the excluded evidence is nqt before us, neither is it apparent from the question itself, and it is therefore impossible for this court to say whether there wias error in the ruling of the trial court.

An offer was made by defendant to’ prove the substance of a conversation had between Mr. Heslet, the then president of the defendant company, and the plaintiff to this action, and, had' the proper foundation been laid, the evidence would have been admissible and material, as tending to contradict the plaintiff’s theory of the case, and possibly discredit the plaintiff himself; but it was clearly impeaching evidence, and the offer did not fix the time when the alleged conversation occurred or designate the persons who were present at the time, neither was the stater ment contained in the offer related to’ the plaintiff when he was-*62on tbe witness stand, and tbe proffered testimony was therefore properly excluded. (Section 3380, Code of Civil Procedure; *State*v. *O’Brien,*18 Mont. 1, 43 Pac., 1091, 44 Pac. 399.)

When tbe defendant came to offer its. proof, and attempted to introduce in evidence the affidavit containing tbe testimony to which it was admitted tbe absent witnesses J. Noss Clark and J. K. Heslet would testify, objections were made to certain portions of that testimony, and by the court-sustained. The de¡-fendamt now claims that this was error, and that it was misled by tbe ruling of tbe court in first denying its motion for continuance upon the ground that tbe plaintiff bad admitted that tbe witnesses, if present, would testify to- those facts, and then ex-cluding certain of tbe facts. Upon this we may say that an admission, upon tbe part of one party, that witnesses for the other, if present, would offer to testify to certain- facts, does not admit tbe competency, relevancy, or materiality of tbe evidence, or preclude the party making the admission from objecting to any portions of the testimony to be offered upon any of those grounds. This is clearly the meaning of Section 1039 of tbe Code of Civil Procedure. If tbe absent witnesses bad been present, tbe plaintiff would have bad tbe undoubted right to1 make such -objection, and tbe court to sustain it, so that tbe der fendant was in no worse position than be would have been bad bis witnesses been in court. However, tbe evidence excluded is not embraced in tbe statement on motion for new trial, and not before this court at all. It is therefore impossible for us to' say whether or not tbe testimony sugbt to be adduced, but excluded, ■sbo-uld have been admitted.

Tbe defendant offered in evidence tbe eight notes which bad been taken from Hiram Nelson, four of which were made payable to tbe John Caplice Company and four made payable to tbe plaintiff, Tague; by direction of J. Boss Clark, a trustee of tbe defendanat company. Upon objection they were excluded. There is absolutely no evidence in the record tending to show that tbe plaintiff, Tague, bad any knowledge whatever of what use was being made of bis money after it was delivered to tbe *63defendant. There ia no evidence in the record whatever that he had ever authorized the defendant to loan his money to and take -therefor the notes of third parties, or that he had ever agreed to accept such notes in payment for the money loaned by him; and neither at the time these notes were offered in evidence, nor at any other time during the course of the trial, was any attempt made to show that the plaintiff had ever agreed to take these notes,- or any of them, further than the mere fact that when plaintiff had directed John Oaplice, who had possession of certain papers belonging to T'ague, to turn over to his attorney, W. W. Dixon, all of his (Tague’s) papers, Oaplice had, among others, delivered to Mi*. Dixon these notes, and they had been retained by him until the time of the trial.

Complaint is made that the court invaded the province of the jury in instructing them that no. evidence had been offered proving, or tending to prove, the existence of any copartnership or association between the plaintiff, T'ague, and John Oaplice in the wood business at Bernice, or that proved, or tended to prove, that the plaintiff had ever accepted the Nelson notes in satisfaction for the money which he had delivered to this defendant. While it is true that the jury are the sole judges- of the facts in the case, and to them, should-be submitted for their determination every issue of fact upon which there is any substantial evidence; it is the duty of the court, when no- testimony whatever has befen offered upon an issue raised by the pleadings-, to withdraw it from the jury, and not -permit them, by mere surmises, conjectures, or speculations) to- determine such an issue by: their verdict. *(Campbell v. Metcalf,*1 Mont. 378; *Sweeney*v. *Darcy,*21 Mont. 188, 53 Pac. 540.)

The only question before the court and jury for determination upo-n the pleadings and the evidence in this case was- whether or not the plaintiff’s money had actually been loaned to the defendant company, and that issue was fairly submitted, upon proper instructions, to the jury, and determined in the plaintiff’s favor.

We have carefully examined the other errors assigned by the *64defendant, but find no1 merit in them. The evidence is amply sufficient to support the judgment, and, no error appearing in the record, the judgment and order appealed from are affirmed.

*Affirmed.*