Pick. 467; Voss v. Eller, (Ind.) 10 N. E. Rep. 74; Rogers v. Beach, 17 N. E. Rep. 609; Wallace v. Johnstone, 129 U. 8. 58, 9 Sup. Ct. Rep. 248; Elston v. Chamberlain, 21 Pac. Rep. 259; Gassert v. Boyk, 19 Pac. Rep. 281. It is sufficient on this appeal to say that.the most favorable view to the plaintiff is that the instrument is ambiguous, and the question whether security was intended—the papers, on their face, not clearly showing a purpose to give security—was a question of fact, resting ultimately on the intention of the parties, to be ascertained, not only from the writings, but from all the other evidence in the case. Whether the papers, on their face, show an absolute sale, with an optional right to repurchase, or are ambiguous, parol evidence is equally admissible to show that security for a debt was in fact intended. While strongly of the opinion that the deed and instrument, when construed by themselves, disclose a design to establish the relation of grantor and grantee, with an optional right in the latter to purchase within five years at a certain price, and not an intention to secure a debt, we do not decide that question, but prefer to put our ruling on the other ground, that the instrument does not clearly show that security was intended, and the question was one of fact for the jury; the defendant having testified that the transaction was not for security, but an absolute settlement and extinguishment of their old relations. Wallace v. Johnstone, 129 U. S. 58, 9 Sup. Ct. Rep. 243; Flagg v. Mann, 14 Pick. 467; Ullman v. Jasper, 7 S. W. Rep. 763. We believe that, under the evidence in this case, the question whether security or settlement was intended is to be determined, not for or against either party, as a matter of law, from the deed and instrument alone, but as a question of fact to be decided, according to the intention of the parties, from all the evidence in the case.
The other ground of recovery was the profit realized by defendant on sale by him oficertain Bismarck property belonging to the firm; which, after sale to a third party, he repurchased in his own name, and sold again at an advance. Whatever liability on the part of the defendant to plaintiff growing out of this transaction there may be, the matter is so connected with the partnership dealings that no separate debt arose in favor of
