court's rulings with respect to these mat- [ percentage of collateral required to secure ters were correct. The meaning of the loans in 1919, as compared with previous phrase "for reserve purposes" was not ex- years. It is said that this proof was releplained. But the mere showing that the vant to indicate whether appellants were Iowa bank was willing to loan the Ovando impelled by criminal intent in what they did. bank money "at any time" would not have But we are unable to see any merit in this justified the false entry made by the defend- contention. The issue on this phase of the ants. If bankers could justify false entries case was whether the defendants had secured made by them by the explanation that they the $10,000 loan from the Northwestern bank, had friends who were ready and willing to which they had represented under their deposit money when called upon to do so, oaths they had, or what was tantamount to making reports to the superintendent of that. An answer to the question as to the banks might as well be done away with, for amount of collateral required would not have thus they might always cover up or obscure thrown any light whatsoever upon the matthe bank's true condition.

ter.

[12] 5. Defendant's counsel insists that the court committed error in allowing undue cross-examination of C. H. Cassill. But in the defendant's direct examination the court had allowed his counsel a wide latitude. The witness was allowed to explain at great

Furthermore, it was then in evidence and never denied that in April, 1920, the defendant Cassill had requested a $6,500 credit from Montgomery, as president of the Iowa bank, and the latter had refused to make it. The $6,500 entry was made on May 4, 1920, just following the refusal of Montgom-length the factors which brought about the ery to loan to the defendants that sum of money, as has been above adverted to. A number of errors are assigned upon the court's rulings in different parts of the record respecting this so-called $10,000 credit and other matters directly cognate thereto. As it was not permissible for the defendants to produce any evidence respecting this purported arrangement in December, 1919, as to a credit "for reserve purposes"-not founded upon any consideration and for an indefinite period of time-it is unnecessary to consider these specifications of error.

[10] Defendants also offered to prove by Montgomery that he knew from his experience as a banker that when a country bank negotiates a loan from a reserve or other bank, it is customary for the country bank to enter the same as an asset when the collateral or other security is transmitted, and without awaiting notice of the receipt of the security or the approval of the loan. Objection to this offer was sustained. That the court's ruling was correct would seem to be too clear to call for discussion. In the first place, the defendants were called upon to disclose to the superintendent of banks the actual condition of the bank of which they were president and cashier. If merely transmitting notes and securities to another bank for credit would justify a representation that the credit existed, designing bank officers might always be able to cover up the actual condition of their bank, and thus delude and deceive the superintendent into the belief that the bank was sound, when the facts would show it to be like the Ovando bank-an empty shell. The offer of proof was not germane to any fact involved in the trial. If allowed, it would have permitted a mere expedition into the realm of pure speculation. Other offers of proof were equally groundless.

[11] Error is assigned because C. H. Cassill was not permitted to testify as to the

failing condition of the Ovando bank. The weather, crop, livestock, market, and financial conditions were discussed by this witness. He went into the condition of the bank exhaustively, and gave explanations as to why the things done by himself and son were done. The court properly permitted a wide latitude in cross-examination. This court, speaking through Mr. Commissioner Poorman, in State v. Rogers, 31 Mont. 1, 77 Pac. 293, used the following language, which is applicable here:

"It is a rule well established in this state that when an accused becomes a witness in his own behalf, and denies that he committed the crime for which he is on trial, a wide latitude of crosseral nature of the defendant's statements. Upexamination is permissible, owing to the gen

deflections from the matter brought out on dion the cross-examination of such witness such rect examination are allowed as may be necessary to bring the whole matter involved in the direct examination before the court, and to extract the whole of the truth concerning the matter brought forward by the accused." Citing State v. Howard, 30 Mont. 518, 77 Pac. 50; and see State v. Rodgers, 40 Mont. 248, 106 Pac. 3.

[13] But it is said that the court adopted a more restricted course when ruling upon the cross-examination of the state's witnesses. An examination of these assignments of error does not bear out the assertion counsel makes. Here, too, wide latitude was permitted in the cross-examination of the state's witnesses. On occasion the examination extended to great length. Many useless questions were asked and answered. Every material and proper question put was answered. When the ground has been covered fully upon a particular point, the court has a right to stop the production of further evidence. Section 10661, R. C. 1921; State v. McConville, 64 Mont. 302, 209 Pac. 987.

6. The errors assigned under the head of "Misconduct of the Trial Court" in defendant's brief have received careful considera

(227 P.)

tion. The five assignments argued under than 3 years, in the state's prison. Counsel this head relate to the trial judge's comments in the presence of the jury during the examination of witnesses, including his remarks bearing on an offer of proof which was denied.

[14, 15] It will not serve any useful purpose to enter into a particular discussion of these alleged errors. In view of the conclusion reached with respect thereto, of the correctness of which we have no doubt whatever, we shall content ourselves with saying that while we do not approve of any of the comments or remarks made by the judge, which are complained of, we do not find that any of them, or all of them considered together, worked prejudice to any substantial rights of the defendants, or probably could have done so. State v. Pippi, supra. As Mr. Justice Holloway remarked in the case last cited:

"The presiding judge is not merely a monitor, but an important factor in the trial of every cause."

It is his duty, while holding the scales of Justice in even poise, to confine the trial within the issues properly triable, to keep from the jury extraneous matters likely to mislead them, and to cause the trial to proceed with all reasonable expedition, to the end that a correct result shall be attained. Rea v. Alfalfa Products Co., 53 Mont. 90, 161 Pac. 708. In ruling upon the admission of evidence it is entirely proper for the judge to give briefly the reasons for his action, but it goes without saying that he should not indicate by his words or manner his bias for or prejudice against the state or the defendant. As was said by Mr. Chief Justice Brantly in State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648: "The judge should, during the course of the trial, refrain from remarks that are calculated in any way to influence the minds of the jury.

Jurors have great confidence in and respect for the presiding judge, and are vigilant in their attention to whatever is said by him. He cannot be too careful in guarding his conduct in this regard."

asserts that the court erred in telling the jury that the punishment provided by law for the offense charged is not less than 1 nor more than 10 years, the instruction being based upon section 6077, R. C. 1921, while section 6082, R. C. 1921, fixes as a penalty for the same offense imprisonment for a term not exceeding 5 years.

At first blush there would appear to be merit in this contention. An examination of the history of the legislation, however, brings the investigator necessarily to a conclusion contrary to the point made. Sections 570 to 585, inclusive, of the 1895 Codes relate to banks and banking corporations. Section 577 was designed to regulate the declaration of dividends by the directors of banks, providing that when they declared a dividend, the president or cashier should make a full and accurate statement to the state auditor

of the condition of the bank upon the day the dividend was declared, etc. It was provided further that, if the banking corporation should neglect to make out and transmit the statement required for one month beyond the period when it should have been made, "or willfully violates any of the provisions of this title," the directors should be personally liable for all debts of the corporation contracted previous to and during the period of such neglect, and should also be subject to a penalty of not less than $100 nor more than $500.

In 1899 the Sixth Legislative Assembly passed an act relating to the dissolution, increase or decrease of capital stock of, and providing penalties for breaches of the banking laws by, banking associations, trust, deposit, and security corporations and savings banks organized under the laws of this state. Substitute for Senate Bill No. 87, Sessions Laws 1899, p. 109. Section 2 thereof made provision as to what should be done by the Governor, Attorney General, and state examiner when any of the corporations named in the act should be found to be in an impaired or insolvent condition. In section 5 the corporations named were prohibited from accepting or receiving deposits of money, bank bills and the like, except under prescribed conditions. This section was under consideration in the recent case of In re Naegele, 69 Mont., 224 Pac. 269. Section 6 of the act prescribed penalties for transgressions of the acts prohibited by section 5, as well as for other acts, among these being the punishment of any one who "willfully subscribes or makes false reports."

[16] 7. Defendants assign four errors based upon instructions given, and six upon instructions refused, and have advanced argument in support of the points made. A painstaking examination shows that the court instructed the jury fully, and as favorably as the defendants had a right to ask. It did not err in refusing to give any instructions offered by them. But defendants insist that, while they did not make the objectioned section 577, supra, by providing that each upon the settlement of the instructions, the court misdirected the jury with respect to the penalty which they might impose upon the defendants. The jury fixed the punishment of the defendant C. H. Cassill at not less than 3 nor more than 6 years, and of Scott K. Cassill at not less than 1 nor more

In 1905 the Legislative Assembly amend

state bank and the other banking corporations therein mentioned should make to the state examiner not less than four reports during each year, according to the form prescribed by him, verified by the oath or affirmation of the president or cashier, and attested by the signatures of at least two of

sale of land held to require application of construction rules.

Executory contract for sale of land on installments held so clumsily expressed as to require application of rules of construction, prescribed in Rev. Codes 1921, § 7528 et seq.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(227 P.)

4. Vendor and purchaser 58-Contract for
sale of land providing that "if" vendee per-
forms, etc., held mutual executory contract.
Contract for sale of real estate providing
that, "if" vendee performs all the terms by him
to be performed, vendor will convey, etc., con-
strued to mean "at the time when," "when-
ever" vendee performs, etc., and not to make
vendor's performance conditional only on ven-
dee's performance in view of general intention,
shown by vendee's going into possession, pay-
ing part of the purchase price, and a provision
for forfeiture by vendor operating to reinvest
him with right, title, etc., showing that he had
parted with something capable of reinvestment.
[Ed. Note.-For other definitions, see Words
and Phrases, First and Second Series, If.]
5. Vendor and purchaser 54-Vendee under
executory contract for sale has equitable title.
In an executory contract for sale of land,
vendor parts with, and vendee secures, equi-
table title.

following until the full amount due under the terms of this contract shall have been paid, with interest at the rate of six per cent. per annum, payable annually, on the whole sum remaining from time to time unpaid; and to pay all taxes, assessments, or impositions that may be legally imposed upon said land, subsequent to the year 1917. And in case of failure of the said party of the second part to make either of the payments, or interest thereof or any part thereof, or perform any of the covenants on his part hereby made and entered into, then the whole of said payments and interest shall, at the election of said first party become immediately due and payable, and this contract shall, at the option of the party of the first part, be forfeited and determined by giving to the said second party 30 days' notice, in writing" which notice "shall be sufficient to cancel all obligation hereunto on the part of the said first party and fully reinvest him with all right, title and interest hereby agreed to be conveyed, and the party of the second part shall forfeit all payments made by him on this contract, and all his right, title and interest in all buildings, fences or other im

6. Vendor and purchaser 302-Forfeiture clause in executory contract held not to pre-provements, whatsoever, and such payments and clude action for balance of price.

A provision for forfeiture, in an executory contract for sale of land at vendor's option and retention of payments made, not expressly declared exclusive, did not preclude enforcement by action for purchase price.

Appeal from District Court, Richland County; Frank P. Leiper, Judge.

F.

Action by Axel Wandell against A. Johnson. Judgment for plaintiff, and defendant appeals. Affirmed.

Carl L. Brattin, of Sidney (L. V. Ketter, of Sidney, of counsel), for appellant.

C. E. Collett, of Sidney, for respondent.

HOLLOWAY, J. This action was commenced in 1923 to recover installments alleged to be due upon the purchase price of real estate. The plaintiff prevailed in the lower court, and defendant appealed from the judgment.

In January, 1919, the parties to this action entered into an agreement in writing the material portions of which are the following:

"If the said party of the second part [defendant Johnson] shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part [plaintiff Wandell] hereby covenants and agrees to convey and assure to the said party of the second part, in fee simple, clear of all incumbrances whatever by a good sufficient deed" 163.73 acres of land in Richland county, particularly described. "And the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of forty-eight hun

dred dollars" as follows:

"The sum of $480.00 on the first day of November, 1920, and the sum of $480.00 on the first day of November of each and every year

improvements shall be retained by the said party of the first part, in full satisfaction and in liquidation of all damages by him sustained, and he shall have the right to reenter and take possession of the premises aforesaid."

It is admitted that Johnson took posses

sion of the land immediately upon the execution of the contract and retained possession thereafter; that he paid the interest and $438 upon the first installment of the principal, but failed to pay anything further.

It is the contention of the defendant that the agreement lacks mutuality of obligation, and in any event forfeiture of the contract, retention of the money paid, and re-entry into possession constitute the only remedy available to plaintiff.

1. The contention that the agreement lacks mutuality is predicated upon the language above. It is insisted that Wandell did not employed in the first paragraph quoted bind himself to sell the land, but agreed only to sell if Johnson first performed fully all the terms mentioned to be performed by him, and since Johnson failed to perform fully, Wandell never assumed any liability whatever.

[1, 2] Speaking generally, mutuality of obligation is an essential ingredient of an enforceable contract (Raiche v. Morrison, 37 Mont. 244, 95 Pac. 1061), and mutuality is lacking, of course, when only one of the contracting parties is bound to perform (6 Cal. Jur. 211; 13 C. J. 331). Whether a contract is bilateral or unilateral depends upon the intention of the parties, and when, as in this instance, the contract is in writing, the intention is to be ascertained from the writing alone, if possible (section 7530, Rev. Codes); that is to say, the language of the contract is to govern its interpretation if the lan

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

guage is clear and explicit and does not in- I was accepted by Wandell. These consideravolve an absurdity (section 7529).

[3] No one would have the temerity to suggest that the language of this agreement is either clear or explicit. Indeed, it would be difficult to conceive of a contract expressed more clumsily; hence we are required to resort to the usual rules of construction to ascertain, if possible, what the parties meant by the language they employed. Section 7528. '

It is a general rule that

"A contract should be construed in such a way as to make the obligations imposed by its terms mutually binding upon the parties, unless such construction is wholly negatived by the language used." Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 43 N. E. 774, 31 L. R. A. 529; 13 C. J. 539; section 7534, Rev. Codes.

[4] Paraphrased, the first provision of this agreement declares that if Johnson first performs all the terms by him to be performed, Wandell will convey the land by good and sufficient deed. Defendant lays much emphasis upon the word "if," and though primarily it imports a condition (Alexander's Estate, 149 Cal. 146, 85 Pac. 308), it means "at the time when; whenever" (Funk & Wagnall's Standard Dictionary); and the particular meaning assigned to it will depend upon its association with other terms employed in the same instrument (Sutton v. West, 77 N. C. 429). That Johnson was absolutely bound to pay the purchase price of the land does not admit of doubt; and while it is true that Wandell did not in express terms agree to sell, the only fair inference from the entire agreement is that both par

tions lead us to the conclusion that the parties intended this agreement to be an executory contract for the sale of the land in question; that Wandell bound himself to sell and that the execution and delivery of the deed only were contingent upon Johnson performing his part of the contract; in other words, that the initial provision of the contract means that when Johnson fully performed, Wandell would execute and deliver the deed (Sharp v. Behr [C. C.] 117 Fed. 864), and the fact that the agreement provides for a forfeiture of the contract and of all payments made upon the purchase price does not affect the mutuality of the obligation (Le Vine v. Whitehouse, 37 Utah, 260, 109 Pac. 2).

[6] 2. It is contended further that the contract itself provides an exclusive remedy, hence plaintiff cannot maintain this action, and Wing v. Brasher, 59 Mont. 10, 194 Pac. 1106, is relied upon to support the contention. In the case cited the contract specifically provided certain remedies for the vendor in case of the vendee's default, and concluded:

"And that should the said party of the second part [vendee] default in any payments that may become due and payable under this contract, this contract shall be the only course of settlement thereunder."

No such provision is contained in the conOn the contrary, the tract now before us. right to declare a forfeiture of the contract and payments already made is expressly declared to be "at the option of the party of Mont. 254, 206 Pac. 1087, the contract involvthe first part." In Alexander v. Wingett, 63

ties intended that he should do so and understood that he promised to do so. In 39 ed provided for a forfeiture in case of deCyc. 1207, the general rule immediately ap- the remedy by forefeiture should be exclufault by the vendee, but did not provide that

plicable is stated as follows:

"Where there is a promise to sell or to purchase, as the case may be, it is not necessary in order that there may be mutuality that there shall be an express promise on the other side, but it is sufficient if upon a fair consideration of the agreement such a promise can be implied."

sive. In disposing of the same contention as that now made, this court said:

"We are of the opinion that the forfeiture clause in the contract of sale was for the benefit of the vendor; and that the failure of the vendee to make the payments when due did not render the contract void so as to preclude an action for the purchase price of the real estate or so much thereof as was due when this aetion was commenced."

The decision in that case is conclusive upon the question now under consideration.

[5] These parties did agree expressly that if Wandell elected to declare a forfeiture of the contract for breach by Johnson, 30 days' notice should be sufficient for that purpose and sufficient to reinvest Wandell "with all right, title and interest hereby agreed to be conveyed." If this is an executory contract The provisions of the contract that the for the sale of the land, Wandell parted payments made by Johnson and the improvewith and Johnson secured the equitable title. ments placed upon the land by him "shall be 39 Cyc. 1302. If defendant's theory be ac- retained by the said party of the first part cepted, Wandell did not part with anything; in full satisfaction and in liquidation of all but to say that he did not part with any- damages by him sustained, and he shall have thing does violence to the language employ- the right to reenter and take possession of ed, for in that event there would not be the premises aforesaid," could become operaanything with which he could be reinvested. tive only in the event that Wandell elected Furthermore, Johnson went into possession to declare a forfeiture. The language is too and paid a part of the purchase price, which | plain to admit of controversy over its mean