
    (October 17, 1914.)
    IDAHO HARDWARE & PLUMBING CO., a Corporation, Respondent, v. HEZEKIAH SAUNDERS et al., Appellants.
    [143 Pac. 1183.]
    APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.
    This action was commenced and prosecuted in said district court to have certain instruments, in form warranty deeds, declared mortgages and foreclosed as such. Judgment for the plaintiff.
    
      Affirmed.
    
    Martin & Cameron, for Appellants.
    Karl Paine, for Respondent.
   TRUITT, J.

The facts in this case are substantially the same as in Capital Lumber Co. v. Hezekiah Saunders et al. Briefs of counsel included both eases. The points of law in each case are identical, and they were presented and argued before' this court at the same time by the same counsel. The following statement in the brief of respondent explains this matter:

“Before beginning the perusal of the statement of the Idaho Hardware & Plumbing Co., the court-should understand that the case of Capital Lumber Co. v. Saunders et al., is in no wise connected with the case of Idaho Hardware & Plumbing Co. v. Saunders et al. For the convenience of counsel and the trial court, the action of the Idaho Hardware & Plumbing Co. v. Saunders et al. was tried immediately following the trial of the Capital Lumber Co. The writer has consented that the appellants might present to this court in a single brief the points relied on by them in both of these cases, believing that such a course will save both court and counsel time and labor, but it must be borne in mind that the facts of the two cases differ somewhat and that each case stands upon its own bottom.”

The theory of appellants in this ease was exactly the same as in the Capital Lumber Co. v. Saunders et al., and the decision of the lower court was similar. The only material difference in the testimony in the two cases is that there was no testimony in this case touching the point that there was an agreement or secret understanding of any kind by which the hardware company was to reserve any interest in said property for the benefit of Saunders. The opinion and the judgment in Capital Lumber Co. v. Saunders et al. therefore disposes of this case.

The judgment is affirmed, with costs to respondent.

Sullivan, C. J., concurs.  