Dissenting. — I agree with my associates that the trial court did not err in calling a jury to try this action, which was brought to recover upon an alleged promise to pay a certain sum of money. The allegation in the complaint to the effect that the deed from the plaintiff to the defendants was intended to secure a loan was matter of inducement, explaining the true nature of the plaintiff’s claim. I also agree that when there is a substantial conflict in the evidence the verdict of the jury should not be disturbed. But I am unable to agree to the conclusion in this case, for the reason that, in my opinion, the evidence was not conflicting to the extent that will bring this case within the rule, or, in other words, there is no real, substantial conflict in the evidence. No witness testified to any of the facts necessary to be established on behalf of the plaintiff, except the plaintiff; and the plaintiff is thoroughly impeached, not only by the testimony of the *461defendants, but by tbe testimony of three witnesses who were not interested in the subject matter of the action, and by documentary evidence also. The plaintiff verified his complaint. It is stated in the complaint that “in the month of October, A. D. 1900, the plaintiff, D. W. Martin, borrowed from the defendant Matt Dowd the sum of one hundred ($100) dollars, and at the same time agreed that he would and did convey one-fourth interest in said John Day mining claim to the said Matt Dowd and John Caffney for the purpose of securing said loan of $100, and for the further purpose that they, the said Matt Dowd and John Caffney, might negotiate a sale of said mining claim, and on the sale thereof retain said sum of $100 and all interest thereon, and pay to this plaintiff one-fourth of any and all purchase money that they might receive from said sale.” In his evidence the said plaintiff denied that said deed was made to secure a loan. The plaintiff testified that he did not understand the contents of the deed when he signed and acknowledged it, while the notary who took his acknowledgment to the said deed (H. K. Barnett) testified that he read the portion of the deed which related to the consideration and the description to the plaintiff, and asked him if he understood the deed, before taking the acknowledgment, to which the plaintiff replied that he did. The witness Barnett is corroborated by the defendant Gaffney, who testified that he was present when the deed was acknowledged, and that “Mr. Barnett read all parts of the deed relating to the description and amount of the consideration to Mr. Martin before he signed it. Mr. Martin was asked if he understood the deed, and if he signed the same voluntarily, and he said that he did.” It was testified to by the defendant Matt Dowd, Charles Dowd, and W. A. Fabrick that at the Dowd farm, in Tammany Hollow, in the month of October, 1899, the plaintiff stated in a conversation with said Matt Dowd, in the presence of Charles Dowd and W. A. Fabrick, that he had sold his interest in said mine to the defendants. The plaintiff did not deny having such conversation, but testified that he did not remember it. Such conversation was testified to by said Matt Dowd, Charles Dowd, and W. A. Fabrick, neither one of whom *462was contradicted or in any manner impeached. Harry Dowd also testified that he met the plaintiff in October, 1899, near Lapwai, and that plaintiff there and then told him that he (plaintiff) had sold his interest in said mine to Matt Dowd and John Gaffney for $500; that he got $100 down, and would get the balance after awhile. Plaintiff denied this conversation. The defendants offered in evidence the following receipt, which was received, to wit: “Lewiston, Idaho, October 9th, 189 — . $100.00. [Received from Matt Dowd and John Gaffney one hundred dollars in part payment for the John Day mine. D. W. Martin.” Thus, it was shown by four witnesses and by the written receipt signed by the plaintiff that he had himself, before the action was commenced, when he had no incentive to tell anything except the truth, declared that he had .sold the mine to the defendants, and that he sold it for $500. He was impeached upon material points by H. K. Barnett, by both of the defendants, by Charles Dowd, by W. A. Fabriclc, and by Harry Dowd, and by the receipt signed by him. By bis own statements made out of court the sale and the purchase price are established as claimed by the defendants. Now, against the statements of the two defendants establishing the transaction between the parties; against the testimony of three witnesses not interested in the transaction, to the effect that plaintiff stated before the suit was commenced that he had sold his interest in the mine to the defendants, and had no further interest in it; that he had sold for the sum of $500, and had received the sum of $100, and would get the balance later; in the face of the written receipt showing that $100 had been piaid him on the purchase price — there is no contradictory evidence in the record, except the evidence of the plaintiff himself, who testified that the transaction and contract was that the defendants were to take the deed, and sell the property and give Mm one-fourth of the proceeds of the sale, without commission or pay for their trouble, and had loaned him $100. He only owned a fourth interest in the property. Neither the defendants nor their witnesses were impeached, and I cannot see how, under such circumstances, there was a substantial conflict in the evidence. Is a jury to find a verdict arbitrarily in *463behalf of a plaintiff who is so thoroughly impeached, and no effort is made to bolster up the evidence of such plaintiff, and the verdict to be permitted to stand? If so, the rights of the citizen who may be unfortunate enough to be unpopular, although honest, are not very safe. It was the unquestionable duty of the trial court to set aside the verdict in this case, as it was against law and contrary to the evidence.