majority">Ostrander, J.

(after stating the facts). Whether the assignment of the land contract was absolute or was given as security for a loan was a material fact. Testimony offered to show its actual character was properly admitted, and the question was* one for the jury. If intended as security merely, it was not error to admit the testimony which tended to prove that defendant Roy Stimer was to have, for the use of his money, the use of the land, except certain portions thereof, until the loan matured. Assuming there was a loan, it was proper to permit the precise consideration to be proved. Although now in dispute, the mutual agreement and understanding of the parties as to possession of the land, if capable of ascertainment, interpreted the motives and explained the conduct of each of them at the time the assault was committed. The assignment of the conract, if intended as security merely, did not necessarily carry with it the right *247of possession. Defendants planted potatoes upon two acres, which plaintiff claimed were reserved, and it was the potatoes growing thereon that plaintiff was digging, and which he proposed to carry away.

Plaintiff’s proof of a tender of the money borrowed (before the assault was committed) was of a tender to William Stimer. Over objection, the court admitted it, saying that as a tender it would perhaps amount to nothing, but that, as bearing upon what the parties knew and understood at the time the assault was committed, it was material. According to the testimony for plaintiff, William said, when the tender was made, in the presence of Roy, “I might as well tell you now, Robinson, to get your things out of the house.” That Roy, although only 20 years of age, consented to the use by his father of his money, and claims the benefit of the assignment, is not disputed. And failure to pay the mortgage, if the assignment was intended as such, would not necessarily operate as a strict foreclosure. The testimony for defendants is that Roy was consulted about what was proposed to be done, and knew that his father intended, with his consent, to use $88 of his money. The jury were warranted in finding that, if it was in fact á loan of his money, he so understood it, and consented to it. It was proper to admit the testimony tending to prove a tender of the money in the presence of Roy. An infant 19 years of age is not excused his actual trespasses; and, whatever his legal rights may be respecting the land contract and the assignment thereof, this infant and the other defendants, charged in the declaration to be joint tort-feasors, gave notice with their plea that they would give in evidence, in their defense, that plaintiff was, at the time of the alleged assault and battery, a trespasser upon the lands and premises of defendants, and that if any assault and battery was committed, it was while they were defending themselves and their property. We find no merit -in the errors assigned upon rulings admitting and rejecting testimony.

*248Defendants requested the court to instruct the jury that exemplary damages could not be recovered. The ground of this request, as we understand the brief, is that the declaration does not, in terms, allege malicious conduct. Batterson v. Railway Co., 49 Mich. 184, is relied upon. The refusal to so charge is assigned as error, and it appears to be contended that the charge given was, in effect, one permitting punitory damages to be recovered. The charge is not open to such an interpretation. The language which was employed by the learned trial judge is:

“But if their attack was malicious, not suddenly provoked by Robinson, and was wanton, malicióus, and wilful, damages should include compensation for injury to the feelings resulting from that kind of attack. If you find under the circumstances that he has suffered injury to his feelings, his sense of being outraged — now, I mean on account of malice on their part, not excited or caused by prior unnecessary and unwarranted attack by himself —you should include damages for that by way of compensation, as I have before stated.”

The declaration does not allege a wanton assault, but does allege an assault and battery made without cause, provocation, or excuse. It is evident that the principle of the case relied upon has no application here. If plaintiff’s testimony was believed, the defendants made the occasion one for grievously maltreating the plaintiff. It does not appear that damages beyond a moderate compensation for the injuries sustained were allowed by the jury.

No reversible error is found, and the judgment is affirmed.

Montgomery, Hooker, Moore, and McAlvay, JJ., concurred.

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