The statement found in the transcript with the caption “ Statement on Appeal,” is manifestly the statement of ap*240pellant on motion for a new trial; the matters therein contained clearly indicate that the same was intended as a statement on motion for a new trial; and further, the transcript discloses that defendant in due time and form gave notice of his intention to move for a new trial, and that the motion was in due time and form made by him, which motion was argued before the Court by the counsel of the respective parties, and no objection appears to have been made by plaintiff to the hearing of such motion for want of a proper statement on which to base the same; and it is not to be presumed that the Court would proceed to hear and determine a motion based upon the ground “ that the evidence is insufficient to justify the findings,” without a settled statement as required by law.
The appeal is by the defendant from the judgment, and also from the order denying his motion for a new trial.
The notices of motions to strike out and to dismiss, and the orders of the Court upon such motions, also that portion of the transcript denominated the judgment roll in a former suit between these parties, do not legitimately constitute a portion of the record in this case on appeal. They are not embodied in any statement or bill of exceptions, and constitute no part of the judgment roll in this case, hence cannot be regarded on this appeal.
The plaintiff claims, and the Court below so found, that the transactions between the parties of May 30th, 1866, constituted a mortgage by plaintiff to defendant to secure an existing indebtedness of plaintiff to defendant. Defendant insists that the evidence does not sustain this finding, but that such finding is against the evidence. If this point is well taken, there is no necessity for considering other points urged by appellants. The transaction of May 30th, 1866, is evidenced by two separate instruments in writing; and to these instruments, and the surrounding circumstances of the parties thereto, at the time of their execu*241tion, we must look for a true interpretation of what the parties intended to accomplish by the execution of these writings. From these writings, and the surrounding circumstances attending their execution, as disclosed by the evidence, the parties, in my judgment, most clearly intended to accomplish an absolute sale of an undivided half of seven hundred and fifty sheep, by the plaintiff" to the defendant, in consideration of six hundred and fifty-six dollars and twenty-five cents then paid by defendant to plaintiff', as follows: Four hundred and twenty-six dollars by the surrender of his note for that sum held by defendant, and the balance, two hundred and thirty dollars and twenty-five cents, by defendant’s note, then executed and delivered to plaintiff; and further, to arrange the terms for a purchase of three hundred and seventy-five sheep of a specified quality, by plaintiff from defendant, to be consummated on the 1st day of June, 1867. The circumstances attending the making and execution of these two instruments of writing on the 30th of May, 1866, most conclusively demonstrate that the terms of each instrument fully and plainly express the intention of the parties thereto. These circumstances and facts are substantially as follows: Prior to the 30th day of May, 1866, plaintiff and defendant had been joint owners of seven hundred and fifty sheep, which were then on defendant’s ranch. Plaintiff, on that day, was indebted to defendant in the sum of four hundred and twenty-six dollars, for which defendant held his note, bearing interest at the rate of two per cent per month; and for the purpose of paying and taking up that note he made an absolute and unconditional sale of his interest in the herd of sheep for the sum of six hundred and fifty-six dollars and twenty-five cents, which he received by taking up his note to defendant for four hundred and twenty-six dollars thereof, *242and taking the promissory note of defendant for the residue. This part of the transaction between the parties is partially evidenced by a bill of sale executed by plaintiff', in the following language:
“ For and in consideration of the sum of six hundred'and fifty-six dollars and twenty-five cents, I have this day sold to R. Angle all the right, title, and interest that I own and have in and to the certain flock of sheep now in the possession of R. Angle, and which said flock of sheep the said R. Angle and myself have heretofore jointly and equally owned. This sale is made upon the basis of one dollar and seventy-five cents per head. The number sold estimated at three hundred and seventy-five sheep. Ro allowance made to either party for any actual variation of the estimated number. The receipt of the purchase money, to wit: six hundred and fifty-six dollars and twenty-five cents, is hereby acknowledged.
“ Signed, John W. Morris.”
Upon the execution of this bill of sale by plaintiff, the defendant delivered to him the promissory note of four hundred and twenty-six dollars, heretofore referred to, and made and delivered to plaintiff his (defendant’s) promissory note for'the residue of the purchase price of said sheep; and thereupon, on the same 30th day of May, 1866, plaintiff and defendant made and executed in writing and in duplicate an agreement in language as follows:
“ This article of agreement, entered into this 30th day of May, A. D. 1866, between R. Angle, party of the first part, and John W. Morris, party of the second part, witnesseth: That the said party of the first part, for and in consideration of the promises and undertakings of the said party of the second part hereinafter set forth, doth agree with the said party of the second part to deliver to the said party of the *243second part, on the 1st day of June, A. D. 1867, at Walker Valley, in the County of Mendocino, three hundred and seventy-five sheep, of the same quality as those now owned by the said party of the first part. And the said party of the second part doth agree with the said party of the first part, that he, the said party of the second part, will, at the time and place aforementioned, to wit: on the 1st day of June, A. D. 1867, and at Walker Valley, in Mendocino County, pay to the said party of the first part the sum of six hundred and fifty-six dollars and twenty-five cents, in gold coin of the United States of America.
“In witness whereof we have hereunto set our hands, this 30th day of May, 1866. [Signed.] R. Angle, John W. Morris.”
I
Such are the writings and attendant circumstances evidencing the character of the transactions between plaintiff and defendant, on the 30th May, 1866, in reference to plaintiff’s undivided half interest in the flock of seven hundred and fifty sheep. The fact that the defendant surrendered to plaintiff, on the receipt of the above bill of sale, the only evidence of indebtedness he then held against plaintiff, and at the same time executed and delivered to plaintiff his own promissory note for the residue of the purchase price of the sheep as named in the bill of sale, and did not retain or hold any evidence of an indebtedness on the part of plaintiff to him, most strongly and conclusively tends to show the intention of the parties was to absolutely and unconditionally transfer the title and property of plaintiff in the sheep to defendant. The" subsequent agreement, in writing, above set forth, given in evidence on the trial by plaintiff, did not in the slightest degree tend to indicate any other or different intention in the transaction evidenced by the bill of sale than such as is indicated by its terms; and subsequent expressions of defendant, given in evidence on *244the trial by plaintiff, even if perfectly understood and related by the witness, were entirely inadequate to change or modify the terms or effect of a deliberate agreement previously made, or to convert what, at the time, was intended to be an absolute sale, into a mortgage. Had all the seven hundred and fifty sheep died upon the hands of defendant before the 1st day of June, 1867, the entire loss manifestly would have fallen on him; and had the market value of sheep, of a like quality, advanced to two dollars and fifty cents per head by the 1st day of June, 1867, the plaintiff could rightfully have insisted upon the delivery to him, by defendant, of the three hundred and seventy-five sheep on tender of six hundred and fifty-six dollars and twenty-five cents, or damages for a failure so to do. The total loss of all his sheep, by defendant, would not have discharged him from the obligation under his agreement of May .80th, 1866; nor would the plaintiff have been relieved from his obligation to pay defendant six hundred and fifty-six dollars and twenty-five cents, in gold coin, on the 1st of June, 1867, for three hundred and seventy-five sheep, of the specified quality, had the market value of sheep of like quality at that time fallen to one dollar per head.
With these views, it becomes unnecessary to notice other questions discussed by counsel.
The judgment and order denying defendant’s motion for a new trial should be reversed, and cause remanded for further proceedings. So ordered.