(concurring). — I am unable to find in this case grounds to support the ruling of the trial court in peremptorily instructing the jury to return a verdict for plaintiff, and thereon entering judgment.

The action is for recovery of money had and received. In answer to the complaint, defendants allege ownership of the chose in action upon Avliich they collected the money in controversy, and allege in detail all the facts concerning the transaction AA'hereby they claim to have purchased from McLoughlin said chose, and transmitted to him payment therefor in fulfillment of their part of said transaction, whereby they claim *456to have become the owners and legal holders of said chose; that plaintiff had knowledge of all the details of said transaction when he paid the amount of said debt to McLoughlin, after having paid the same to defendant; and that plaintiff made such payment to McLoughlin, conniving and conspiring with him to defraud defendants. This answer was entertained as a sufficient defense.

Plaintiffs by reply, denied the allegations of the answer “ on information and belief,” so far as such averments related to the transaction between McLoughlin and Joy. Now, upon the trial, defendants introduced proof supporting the allegations of their answer, which proof was not rebutted, McLoughlin not being present as a party or witness to dispute the alleged transaction whereby Joy claims to have purchased said demand; and plaintiff Wetzstein made no attempt to rebut the testimony offered by defendants in support of the allegations of their answer. Notwithstanding this state of the case, the court, on plaintiffs’ motion, instructed the jury to return a verdict against the defendants for the recovery demanded in the complaint.

It is plain that, if the answer alleges a defense (and this is not disputed in any stage of the case, either in argument or by proceeding to strike out the answer or any part thereof), then the ruling of the court practically taking the case from the jury, and summarily determining the issue in favor of plaintiffs, cannot be sustained.

In support of the court’s ruling, respondents’ counsel argue' that it was justified, because the testimony offered in support of defendants’ answer showed that defendants were not in actual possession of the note and mortgage when payment thereof was collected from Wetzstein. There is no averment in the answer that defendants were actually in possession of said chose when the money was collected. The allegations in that regard were a recital of the facts constituting said transaction between McLoughlin and defendant Joy, whereby, as defendants allege, Hattie M. Joy “ became the owner and legal holder of said note and mortgage”; and issue was joined on all these averments by plaintiffs’ replication; and when the trial was had, defendants supported their averments by proof. But *457plaintiffs introduced no proof to contradict the showing that defendants had purchased said demand as set forth in the answer and supported by proof, but, apparently conceding those facts, respondents’ counsel argue that, inasmuch as said note and mortgage had not been actually assigned and delivered, Joy could not have enforced specific assignment or delivery thereof to him; that his only remedy was an action for damages against McLoughlin for breach of the contract of sale. Plaintiffs’ counsel thus admit that McLoughlin had gone so far in the transaction as to commit himself to damage for failure to deliver the chose in question. They practically admit that McLoughlin had sold said demand to Joy, and that Wetzstein had full knowledge of said sale when he interposed to intercept the transaction, and thrust in his payment a second time, as the evidence shows without dispute, relying upon recovery of his first payment from defendants merely, because plaintiff had succeeded in overtaking said note and mortgage outside of defendants’ possession. Whether Joy would have obtained possession of the note and mortgage if plaintiff had not taken it up and canceled it, thus destroying the possibility of Joy getting possession, depends possibly upon events as much as upon abstract propositions of law. But, conceding respondents’ position that Joy only had an action for damages for McLoughlin’s failure to deliver, that action might have brought forth delivery if plaintiff had not wrongfully interposed and made delivery impossible; because McLoughlin, to escape or mitigate damages, might have delivered the thing in question, which, as the case stands, it is admitted Joy had purchased from McLoughlin.

The case is in no position before this court, or the court below, to admit of close legal deductions as to what shape proceedings between Joy and McLoughlin might have taken, or what result might have been attained. It suffices for this decision that plaintiff did not contradict the facts set up in defense, to the effect that by purchase defendants became the legal owners of said demand, and that plaintiff knew that fact when he made payment to McLoughlin. Notwithstanding these conditions, plaintiff, in effect, reached forth, and took the controversy into his own hands, aud, not waiting at all to be *458drawn into it, made payment to McLoughlin over Joy’s claim of ownership, and brought this action to recover the first payment from Joy. And, when lie was met in defense by the allegation of tlie facts constituting the transaction whereby Joy claims to have purchased said demand, he denied those facts “on information and belief”; thus taking upon himself the burden of showing that said transaction had not occurred between Joy and McLoughlin. In this plaintiff signally failed, for Joy supported his answer by proof, and no proof whatever was offered in rebuttal. The mere fact that defendant had not possession of the thing is not sufficient to support plaihtiff’s action, for one may have the right to a thing or chose and not be in actual possession thereof. Having thus admitted the purchase by Joy, and that plaintiff had actual knowledge of that transaction when he made payment to McLoughlin, plaintiff cannot expect to be sustained in thus attempting to take away from defendants the fruit of their purchase. A strict application of legal principles to the conditions shown in this case would have nonsuited plaintiff, and allowed him no recovery. But on the whole showing it is just that his recovery be limited to the amount paid by Joy to McLoughlin, which, by plaintiff’s interference, he got returned to Joy, and his own payment accepted instead. For these reasons I concur.

The action of the district court in instructing the jury to find for the plaintiffs was, in effect, to take the case away from the consideration of the jury, and for the court to find that plaintiffs had introduced testimony tending to prove the material allegations of the complaint, and that defendants had not introduced testimony tending to contradict the plaintiffs, or tending to establish their defense. The action of the court was in the nature of a nonsuit of the defense, together with a holding that the facts made a case for this plaintiff.

There is no material conflict in the testimony. We will state it as contained in the record, and then determine whether it justified the action of the court. About October 4th, at Livingston, McLoughlin informed Joy that he held the note, and mortgage of the Wetzsteins. It seems that McLoughlin wished to dispose of it. There was then due $121.86 interest. Joy offered $550, which was the face. This was accepted, and McLoughlin told Joy to send the money to Missoula. Joy did not do so for a week. He then wrote to McLoughlin at Missoula, and asked him if he -was still willing to take his offer for the note. McLoughlin replied on October 15th as follows: “Yours of the 12th received. In reply will say that'you may send me the draft for $550, and take up the note and mortgage.” On October 17th Joy sent to McLoughlin, at Missoula, his check for this amount, $550, with his letter accepting the proposition, and requesting McLoughlin to forward the note and mortgage and an assignment. It does not appear that McLoughlin at that time or ever retracted his offer of October 12th. The method of payment by Joy’s check was satisfactory to McLoughlin. No objection was ever made by *453him to the method of payment, but this check came back to Joy; it does not appear when, or from whom. It was not collected by McLoughliu. It does not appear that it was returned before October 22d. The note and mortgage never came to Joy from McLouglilin. They did come to D. A. McCaw, cashier of the National Park Bank of Livingston, on the morning of October 22d. This was the day after Wetzstein had paid into court, iu the presence of McCaw, the McCaw cashier’s check to satisfy the note. Wetzstein said that he understood the note and mortgage were in the bank for collection when he paid Joy on October 21st. Now, McCaw had, at the instance of Wetzstein, on October 18th, written to McLoughliu, at Missoula, for the note and mortgage, and Wetzstein had deposited with him, McCaw, $680, to be paid to McLouglilin when he delivered the note and mortgage. It seems that this Welzstein-McCaw matter was unknown to McLouglilin, at least prior to his receipt, if he did receive it, of McCaw’s letter of the 18th. This letter was one day later than the letter of Joy to McLouglilin sending the $550. At one place in his testimony McCaw says that he sent the money to McLouglilin on the 18th, and again it appears that he sent it on the receipt of the note and mortgage, on the 22d. In any event, Wetzstein had deposited the amount with him for the note and mortgage before he, Wetzstein, paid Joy on the 21st. Now, Wetzstein claims that after paying Joy he was obliged to pay the amount the second time, to McLouglilin. As the evidence in the case appears, he was not obliged to do any thing of the kind. Joy told him not to pay to the bank or McLouglilin; that he (Joy, or Mrs. Joy) owned the note, and he would give him (Wetzstein) a $10,000 bond to protect him. McCaw, bank cashier, did not require Wetzstein to pay the note. The fact is that Wetzstein manifested uncommon assiduity in rushing to pay his note a second time, when no one was pushing the payment, and the person to whom he had already paid offered him abundant indemnity. Wetzstein exhibited a fever of liquidation, which is as unusual generally as it is inexplicable in this case. McCaw’s conduct also is extraordinary. He prepared his cashier’s check, and went with Wetzstein to the clerk of the court, to pay the note on the Joy-Wetzstein suit. *454He did tliis when, as he says, he had sent to Missoula for the note and mortgage at Wetzstein’s request, and when he had, as he says, Wetzstein’s money in his bank to pay McLoughlin for the note and mortgage.

Now, this peculiar condition of acts and facts plaintiff claimed before the district court established his cause of action against defendant; that is, that defendant Hattie M. Joy was not the owner or holder of the note and mortgage when she commenced the action to foreclose. The court took this view, and ruled accordingly. But we ave of opinion that there was not .evidence to sustain this position. The contract between Joy and McLoughlin is shown in evidence, and also the payment by Joy to McLoughlin of the $550, by a method which was within the contemplation of the parties, and not objected to by Mc-Loughlin. To be sure, the check of Joy to McLoughlin came back to Joy, but not before Wetzstein had paid Joy. Mc-Loughlin is not in court in this case denying the making of the contract, which Joy testified was made between himself and McLoughlin. But this diligent debtor, Wetzstein, takes it upon himself to say that the Joy-McLoughlin contract was not made. In his anxiety to interpret, or deny, rather, the contract of other parties, he accentuates his views by forcing his money onto McLoughlin. The sole evidence of plaintiff’s contention that Joy was not the owner of the note and mortgage is the fact that Wetzstein and McCaw, between them, managed to get the possession or custody of the note and mortgage into McCaw’s hands. We are of the opinion that this fact was not evidence that Joy was not the owner, in the face of Joy’s testimony as to his contract with McLoughlin, and in the absence of McLouglilin’s testimony as to the transaction. It is true that Joy was not the “ holder” of the note and mortgage, in the sense of having a manual grasp upon the paper upon which the note was written. But the evidence does not show that he was not the legal holder, and entitled to bring action for its collection.

It is plain that the judgment in this case cannot be affirmed. The case, as it is before us, is a most peculiar one; but, upon a consideration of the undisputed facts, we ai’e of opinion that a modification of the judgment can be made which will do sub*455stantial, and indeed exact, justice between the parties. The situation seems to be as follows: Joy’s case, as he presents it, is that he concedes he has $550 in his hands, which sum is the consideration for Avliich he bought the note and mortgage. Upon this sum lie makes no claim. It came into his hands in this manner, that is to say: Wetzstein interfered with the JoyMcLoughlin contract, and thrust his money in McLoughlin’s hands.. Then McLoughlin sends the $550 along to Joy. That amount thus went around the circuit from Wetzstein, through McLoughlin, to Joy. Thus Wetzstein has gotten it into the hands of Joy. It is in Joy’s hands under the circumstances that McLoughlin disclaimed it by sending it to Joy, and Joy concedes that he does not oivn or claim it. Wetzstein claims this amount, and more, too; but, as to this amount — $550—no one says him nay. With these facts and rights and claims of the parties agreed to and admitted, as the case is before us, there seems to be no reason Avhy Wetzstein should not retain liis judgment to the extent of $550 against Joy. The case is therefore remanded to the district court, with directions to modify the judgment so that Wetzstein shall recover from Joy $550, without interest.

It is further ordered that the costs be taxed against the respondent Wetzstein, for the reason that this whole controversy arose from respondent’s acts in needlessly procuring this $550 to be conveyed into Joy’s hands.

Modified.