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statements, refrain from stating that they of this right may be ascertained in all cases. would prove facts which they know cannot be It is also well settled that the court has a established by competent evidence, or by evi discretionary power to restrain what has been dence which they have reason to believe to be termed, perhaps, not quite appropriately, inadmissible to establish the facts claimed to an abuse of this right by which is meant very exist. Courts frequently, to protect the rights little more than that counsel may be restrictof parties, refuse to allow offers of evidence ed to a discussion of matters relevant to the to be made in the presence of the jury which case, and restrained from wasting the time the opposing party has reason to believe is of the court by useless repetition. But it inadmissible and may prejudice his case by must always be a difficult as well as a delibeing stated in the presence of the jury. Ca cate matter, in a case like this, for the court ses are sometimes reversed where counsel to determine in advance what limitation persist in seeking to obtain advantage by of should be imposed upon counsel against fering evidence in the presence of the jury their consent (Williams v. State, 60 Ga. which they know is incompetent or inadmis 369, 27 Am. Rep. 412); and, as was said in sible. For somewhat the same reason, coun the case of People v. Keenan, 13 Cal. 581 : sel should avoid taking undue advantage, in 'If it [the court] imposes a limitation of the opening statement to the jury, by accom time upon counsel against their consent, plishing at that stage of the case what they this must be done at the risk of a new know they will not be allowed to accomplish trial if it be shown by uncontradicted when they come to offer their evidence.

affidavit that the prisoner was deprived by 3. At the conclusion of the evidence the the limitation of the opporunity of a full court made an order limiting the argument to defense ; for this is his constitutional right, an hour and three-quarters to each side, to without which he cannot be convicted.'" which defendant objected, and the objection In People v. Green the court gave a skeleton) having been overruled, the defendant except of the testimony and the issues of fact "to ed. In support of the motion for a new trial test the truth of the affidavits of counsel, to Mr. Berry, one of defendant's attorneys, made the effect that the time to which they were affidavit, which is not contradicted, that five limited was insufficient." In that case the days were consumed in the trial of the case; charge was robbery and the limitation put that the testimony and proceedings occupy upon counsel for defendant was one hour, 350 pages of the transcript as compiled by and the court held it to be an abuse of discrethe reporter; that the testimony of two wit tion. It is not possible to derive much benefit nesses taken at the preliminary examination from a comparison of the facts in other cases of the defendant, and the testimony of one with the one in question. The length of the witness taken at a former trial of said cause, trial and the quantity of testimony taken consisting of 100 pages, was admitted by stip are not always or necessarily determinative ulation; "that it was utterly impossible to of the question. Nor is it a safe guide for submit a full and fair argument of the cause the judge to determine the limit by the time to the jury in that time; that by reason of in which he might think he could adequately the limitation, counsel for the defendant were present the case fully for the defendant. The prevented from presenting to the jury many character of the testimony and the issues material points, which would have been pre raised by it; its conflicting nature as well sented, but for the order of the court limit as the nature of the charge itself must be ing the time for argument, and he believed considered; as was said in People v. Keenan, the rights of defendant were prejudiced by supra: “It is difficult for a judge to dethe said order of the court.” It appeared termine what effect a given line of argument that Mr. Ostrander closed the argument for may have upon a jury, or some one of them, defendant, and was given five minutes' addi or what period may be necessary to enable tional time, and, not having concluded his ar counsel to present, in the aspect deemed by gument, he was offered 15 minutes of the dis them important, the case of their client. trict attorney's time, which he used and closed The minds of men are so differently constihis argument.

tuted that one advocate may require much The principal cases in this jurisdiction more for the statement and elaboration of where the question is discussed are People his views than another.” v. Keenan, 13 Cal. 581, and People v. Green, Where counsel are limited to a stated time 99 Cal. 564, 34 Pac. 231. The cases where deemed by them too short, they may find the point has arisen are quite fully shown in it necessary to omit points of importance in note to Yeldell v. State, 100 Ala. 26, 14 South. order to give more attention to others deemed 570, 46 Am. St. Rep. 23. It was said in of greater importance. Or the elaboration of People v. Green, supra: "That a defendant essential points deemed important may he being tried on a charge of felony has a con prevented in order to make all the points stitutional right to be fully heard in the desired. Then, too, counsel, speaking under defense by counsel, which it is not within limitations of time which they feel to be the discretionary power of the court to deny wholly inadequate, are under constraints or abridge, is not questioned. Yet it has not conducive to their best efforts, and to the been found impossible to formulate any ab- full protection of defendant's rights. The stract rule or definition by which the extent uncontradicted affidavit of counsel is that

within the time limited it was “utterly im- | must be in this, as in all crimes, a union possible to present a full and fair argument of act and intent (Penal Code, $ 20); and of the cause to the jury” and that counsel that there were in this case, as claimed by were thereby "prevented from presenting the people, several steps taken to the end to the jury many material points which would sought which would not constitute an assault, have been presented but for the order of the or attempt to commit the crime, and yet the court limiting the time for argument."

instruction might lead the jury to so concannot very well skeletonize the testimony in sider them as justifying conviction. Attensupport of counsel's affidavit without to some tion is called to People v. Johnson, 131 Cal., extent indicating our impression of the suifi at page 515, 03 Pac., at page 844, where ciency or insufficiency of the evidence to similar language is used, but after the words justify the verdict, and this we must avoid, "and took steps looking towards such interas the case must go back for a new trial. course," the following appears: “And laid Suffice it to say that the peculiar circum hands upon her for that purpose, although stances surrounding the case, as well as the he did not mean to use any force to comnature of the charge; the many contradic plete his intent if it caused the child pain, tory statements of material facts by witnes and desisted from his attempt as soon as ses for the prosecution; the tender age of it hurt, he would yet be guilty of an tlie child, and the importance of her testi assault with intent to commit the crime mony given under conditions justly raising charged in the information." As the inthe question for the jury whether it could struction reads something in itself short of safely be considered by them in certain touching the child might be understood by material respects; the conflict in the testi the jury as constituting an assault with inmony of witnesses at the preliminary exam tent to commit the crime charged. Force ination, and at the first trial, and at the last is not an element of an assault where the or present trial, and the alleged self-impeach female is under the age of consent, but there ment of important witnesses for the prosecu must be contact of some sort with the child tion; the testimony as to the alibi claimed or taking hold of her in such a manner as by defendant; the conflict in the testimony to indicate the intent to have carnal knowl. as to whether Enriquez truthfully repeated edge of her. But this intent, of course, may what witness Pete Rodiquez said to him be judged by the facts and circumstances. about compromising the case which went The second point of objection brings the into evidence to show bias of the witness ; instruction dangerously near the cases of that the medical experts did not agree as People v. Johnson, 106 Cal. 289, 294, 39 Pac. to the results of a miscroscopical examination 622, and People v. Barker, 137 Cal. 557, 70 to discover spermatozoa on the child's cloth Pac. 617, where the instruction read: "If ing; the fact that much of the testimony was you believe the prosecutrix it is your duty to given by witnesses who could not speak or render a verdict accordingly," and new trials understand the English language, and testi were granted for the error. The principle is fied by an interpreter; these and other con

well settled that the defendant may be siderations which might be suggested lead convicted upon the uncorroborated testimony us to the belief that counsel's affidavit is of the prosecutrix, or, as in this case, upon true, and being uncontradicted by the district the uncorroborated testimony of the female attorney, or by the condition in which we find upon whom the assault was committed ; the record, we must conclude, under the au People v. Fleming, 94 Cal. 308, 29 Pac. 617; thorities cited, that there was prejudicial er

People v. Gardner, 98 Cal. 127, 32 Pac. 880, ror in making the order complained of.

and other cases; but the rule should be so 4. It seems to us that in view of the stated that the instruction would not be obtheory of the prosecution and of certain facts noxious to the objection that it is a charge attending the alleged assault, for example, with respect to matters of fact. People v. that previously thereto her assailant gave Johnson, supra; People v. Barker, supra. the child freely of wine to drink, in 5. The claim is made that the court abused struction numbered 19 given for the people, its discretion in allowing the child Stephini to which objection is taken, should be more to testify, after her examination on her specific. It was as follows: "In a charge voir dire. It was said in People v. Craig, of assault to rape a female under the age of 111 Cal. 460, 44 Pac. 186: "The burden is consent, it is not necessary to show that the upon the person who objects to the child defendant intended to gratify his passion, at being a witness, to show that he is incapable, all events, or to use force, but it is enough and the determination of the judge upon that he intended to have intercourse, and such objection and an examination of the took steps to that end. The uncorroborated child, is not a matter for review, any more testimony of the female upon whom the as than his ruling upon the capacity of an adult sault is made, if you believe her testimony who may be offered as a witness." In People to be true. is sufficient to establish the v. Daily, 125 Cal. 104, 67 Pac. 16, the court charge.” The objection of defendant is di seems to have regarded the question as one rected to the italicized portions of the in of discretion, inferentially holding that it struction. The first point made is that the abused, the appellate court might review it. intention alone is not sufficient; that there However this may be, the case would have

to be very clear before we should disagree fendant contends that the evidence does not with the trial judge as to the mental compe support the findings of the court in this retency of a witness. His opportunity to pass gard. The findings are conclusive upon us upon the matter is much better with the wit if there is substantial evidence to support ness before him than ours can be by read them, even though the evidence may be coning the cold record. Although permitted to flicting or may preponderate in favor of de. testify, the jury would, doubtless, take into fendant. consideration the immaturity of the child's The defendant was, at the times mentioned mind in passing upon the weight of its testi in the pleadings and findings, a corporation. mony. We cannot say that in this instance Its capital stock was divided into 300 shares, the court erred in permitting the child to and was, at the time the contract was made. testify.

owned and held by J. M. Wilmans, F. W. WilOther questions presented may not again mans, Lillian W. Wilmans, Clara E. Wilmans, arise, and we will therefore not notice them. and Martha J. Wilmans. J. M. Wilmans was

The judgment and order are reversed, and the secretary and managing agent, and owned the cause remanded for a new trial.

two-thirds of the shares of the capital stock

of the corporation. Its assets consisted of I concur in the judgment: BUCKLES, J. about 1,400 acres of land situate in Stanislaus

county in this state. The managing agent of I concur, but base my concurrence wholly | defendant, J. M. Wilmans, spoke of the deon People v. Keenan, and People v. Green,

fendant's property as his own land and as besupra, which I deem as binding on this court:

ing mortgaged for $75,000, or, in his lanMCLAUGHLIN, J.

guage: “I owed $75,000 on the whole property." There is evidence to the effect that on

May 21, 1903, Merle, the agent of plaintiff, (7 Cal. Unrep. 311)

was in Stanislaus county with one Witcher, E. P. VANDERCOOK CO. V. WILMANS

who was looking at lands with a view of purCO. (Civ. 191.)

chasing, and Merle was showing Witcher dif(Court of Appeal, First District, California.

ferent tracts of land. They saw the lands beSept. 21, 1906.)

longing to the defendant, and Witcher seemeil 1. BROKERS – ACTION FOR COMPENSATION SUFFICIENCY OF EVIDENCE.

to be pleased with them, and to desire to In an action for compensation for the sale purchase them, or at least a part of the land of real estate, evidence held sufficient to sus owned by the defendant. Merle procured tain findings that the plaintiff procured a pur

from defendant, through J. M. Wilmans, its chaser who was ready, able, and willing to purchase, and thereby completed its services agent, with admitted power to act, a contract and earned its commission.

in writing, authorizing the plaintiff, exclusive2. SAME-RIGHT TO COMMISSIONS-NECESSITY

ly, to sell a tract of land described therein, FOR ACTUAL SALE.

Under a contract whereby the owner of containing 310 acres, at $100 per acre, and anland gave plaintiff exclusive authority to sell

other lot containing 214 acres at $300 per it and agreed to pay a commission on any acre. The contract contained the clause: amount for which the property should be sold,

"If said property is sold, or a purchaser is the plaintiff was entitled to his commission on

found by E. P. Vandercook Co., or through procuring a purchaser able, ready, and willing to purchase though the sale was not actually their agency, we agree to pay the said E. P. completed.

Vandercook Co. 212 per cent. commission [Ed. Note.-For cases in point, see Cent. Dig.

on any amount for which said property shall vol. 8, Brokers, SS 75-81, 91-96.]

be sold." The contract was to continue for Appeal from Superior Court, Alameda one month from date, May 21, 1903, and was County; Henry A. Melvin, Judge.

continued by written extensions to July 20, Action by the E. P. Vandercook Company 1903. It contained a clause that it should against the Wilmans Company. From an be irrevocable until withdrawn by written order denying defendant's motion for a new

notice. trial, he appeals. Affirmed.

Merle testified that he showed the property John S. Partridge, for appellant. Snook &

to Witcher and “Witcher said he would take Church, for respondent.

that particular piece of property described in

the contract. He was to take 310 acres for COOPER, J. This action was brought to $100 an acre and 214 acres at $300 an acre.

* recover $791.87 as commissions for the sale

Mr. Witcher said if everything was of real estate under a written contract. The all right the abstract of title was correct, he case was tried before the court, findings filed, would take that amount of land. He made no and judgment ordered and entered for plain other objection than that the abstract of title tiff. Defendant has appealed from the order should be correct. We had been at the ranch denying its motion for a new trial. The a couple of hours driving around the premcourt found that, pursuant to the authori ises. This particular 300 acres was pointed zation contained in the contract, the plaintiff out by Mr. Wilmans on the map and we procured a purchaser for the lands therein drove down and saw the land. Mr. Witcher described who was ready, able, and willing did not tell Mr. Wilmans at the ranch that to purchase, and thereby completed its ser he would take the land; he told him so at vices and earned its commissions. The des the hotel.” Witcher testified that he was

ready at the time the contract was made; that the purchase looked all right to him.

Now, after the plaintiff had procured for the defendant a purchaser for the land described in the contract who was able, ready, and willing to take the land, there arose some question in the mind of Witcher as to whether or not the amount of land described in the contract would be sufficient for his purposes. Wilmans suggested that he would sell Witcher a half interest in the whole ranch. Merle testified that, while this proposition was pending, he went to Wilmans and asked him as to the plaintiff's commissions in case Witcher purchased half the ranch instead of that described in the contract, and that Wilmans replied: "I will stand by my agreement; will pay you your commission as I agreed on the purchase price, which was $31,000." Witcher testified that he heard this conversation, and that Wilmans said: "We will pay the commissions on the sum of $37,675 at the rate of 242 per cent., but that was in reference to the 31212 acres in reference to the first deal.” Wilmans testified in regard to this conversation with Merle: "Then he asked about the commission; I told him that if the trade went through, if he made any trade, that I would see that he got his commission of 21, per cent."

It therefore appears clear that the minds of the seller and purchaser were first brought together by the plaintiff on the sale of the lands described in the contract. It is admitted that Witcher was able to purchase. It is a significant fact that he gave Wilmans $2,100 while the contemplated sale under the contract was in progress. It is now claimed both by Wilmans and Witcher that this $2,400 was a loan and had nothing to do with the contract, but the claim that it was a loan seems to have been an afterthought. Witcher testified as to this payment: "This thing had been dragging along from May 23d to June 24th. Mr. Wilmans stated to me that he was in need of $2,400 to pay some money due in San Francisco.

* I said to Mr. Wilmans, 'I have some idle money, I will lend you that $2.400; if I ever buy anything from you it can be applied to the price. If I don't, it is an ordinary loan to be returned to me when the note becomes due.'” The witness could not remember the length of time of the note, nor whether it was given by the corporation or Wilmans. Wilmans testified that he “owed some money in the bank, and I was anxious to pay it. I asked him if he would advance it and take may note for it, and if there was nothing went of this I had to pay him back.” Wilmans did not remember whether he gave his personal note or the note of the corporation. No security was asked or given. The note was not produced in evidence. Before the sale of the lands described in the contract was completed the arrangement was changed at the suggestion of Wilians, and Witcher agreed to buy the shares of capital stock of defendant corporation belonging to

the Wilmans. He took an option on them in August, 1903, bought half of them in Septenber and the balance in October of the same year. Witcher testified: “I think the sugyestion that I should buy the stock of the corporation came from Mr. Wilmans.“ Witcher was asked: "Q. Ur. Witelier, if you had not bought the stock of the corporaltion, would you have purchased any part of the ranch? A. Well, I probably would have in time, though I never did get around far enough to close up the deal.” Wilmans testified on the same point: "I suggested that he take the 500 acres, and he said he would entertain it about the 1st day of August. I suggested to him along about the 1st of August that he take stock in the company." It is a significant fact that,

that, although the parties had been brought together by the plaintiff', and Witcher had given the defendant $2,100, after the suggestion of the sale of the stock to the contemplated purchaser, the sale of the stock was not made until the contract with the plaintiff had expired. The sale of the stock of the corporation to Witcher was, as to the owners of the stock, the equivalent of the sale of the ranch. The sale is spoken of by Wilmans as a sale of the land. He testified: "Some of that land is not worth any $100 an acre, while there is a portion of the property would be worth $110, and some down at $80. So in fixing it all up, in adjusting the value, I put it on that basis, $91.50 for the 1.400 acres.”

At the time the plaintiff was employed the Wilmans were the owners of all the stock of defendant and thus owned all that defendant owned. Defendant owned the ranch of 1,400 acres and nothing else. The Wilmans were, for the purposes of this case, the corporation, and they desired to sell the lands described in the contract and pay their debts. They did, in effect, sell the lands described in the contract, together with all the lands owned by the corporation. They sold to the purchaser found by plaintiff. The defendant promised to pay plaintiff the commissions when it made the contract, and it again promised when the contract was changed so as to include other lands. It has not paid the commission, and it is no defense that the sale was made by a different mode from that contemplated in the contract. The purchaser produced by plaintiff has, in fact. become the owner of the lands which defendant desired to sell. It is true that Witcher, who purchased the land by purchasing all the shares of stock of defendant, was not a party to the contract, but he knew of it when he purchased the stock. Ile heard Wilmans promise to pay the commissions. He will not be allowed in this way to defeat the claiin of plaintiff against defendant.

When the sale of the capital stock was completed Witcher retaineil $30,000 out of the amount to be paid by him as a guaranty that the company was not further obligated

1

than what the books showed." The company was under the obligation to plaintiff to pay the commissions due it, whether the books showed it or not. The transaction must be stripped of all its intricacies and viewed in the light of common sense. It was, in substance, a sale of the ranch of the Wilmans to Witcher. The corporation was only the instrument by which the title was held for the owners of the capital stock, and by its duly authorized agent it agreed to pay plaintiff for its services. The services have been performed and the defendant must pay for them. If the corporation had sold the ranch to Witcher and made its deed under its corporate seal, and he had paid the money to the corporation, the title would have passed. The title is now in the corporate name of defendant, but as Witcher holds all the shares of the capital stock of defendant he holds that which is equivalent to the title. therefore conclude that the findings are supported by the evidence.

The contention of the appellant that the commissions were to be paid only out of the purchase money when an actual sale should be made is without merit. The agreement was to pay plaintiff “21/2 per cent. commission on any amount for which said property shall be sold.” This does not make the commissions payable only out of a particular fund. When plaintiff procured a purchaser, able, ready, and willing to purchase, defendant could not by its own act, in suggesting and carrying through a different scheme, take the benefit of the plaintiff's services without compensation. Courts will not readily lend their assistance to aid parties in escaping their just liabilities through technicalities.

The order is affirmed.

ment of facts, because not filed and served within the time limited by statute. The record discloses that the statement was filed and served some 37 days after the judgment was pronounced, and the right of appeal accrued, and the record fails to show that the time for filing the statement was extended, or that any application to extend the time was made. In State v. Seaton, 26 Wash. 305, 66 Pac. 397, this court held that the provision of the statute fixing the time in which a notice of appeal must be given, and the time within which the statement of facts must be filed after taking an appeal, were mandatory provisions over which the appellate court had no control, and unless the record on appeal showed a compliance with them the court could not, without a usurpation of power, entertain the appeal. The principle announced applies to the case before us, and we are constrained to hold that the statement must be stricken. See, also, State v. Landes, 26 Wash. 326, 67 Pac. 72; Crowley v. McDonough, 30 Wash. 57, 70 Pac. 261; Humes v. Hillman, 39 Wash. 107, 80 Pac. 1104. The conclusion we have reached concerning the statement of facts requires an affirmance of the judgment, as none of the questions suggested in the assignment of errors can be reviewed without its aid.

The judgment must be afirmed, and it is so ordered.

We

We concur: HARRISON, P. J.; HALL, J.

(-15 Wash. 125)

STATE V. ASCHENBRENNER. (Supreme Court of Washington. Dec. 21, 1906.) CRIMINAL LAW APPEAL STATEMENT OF FACTS- TINE OF FILING.

A statement of facts in a criminal case filed and served after the expiration of 30 days after the rendition of the judgment and accrual of the right of appeal, will be stricken because not filed and served within the time limited by the statute, where the record fails to show that the time for filing was extended, or that any application was made therefor.

Appeal from Superior Court, Whitman County; S. J. Chadwick, Judge.

George H. Aschenbrenner was convicted of crime, and he appeals. Affirmed.

M. 0. Reed and J. Hugh Sherfey, for appellant. R. H. Kipp, for the State.

(45 Wash. 119) MERTZ V. CONRAD. (Supreme Court of Washington. Dec. 20, 1906.) IIUSBAND AND WIFE-COMMUNITY PROPERTYCOMMUNITY AND SEPARATE DEBTS.

Where. in an action against a husband and wife for goods sold, it appeared that at the request of the husband the goods were shipped in the wife's name, and bills rendered in her name to which she made no objection, and the testimony of plaintiff to the effect that he sold and delivered the property to both the husband and wife was not disputed, a judgment against the wife's separate estate as well as against the community was not erroneous, though the goods were purchased and used in a business conducted by the community.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 26, Husband and Wife, $$ 953–967.]

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by W. S. Conrad against Carrie M. Mertz and another. From a judgment in faror of plaintiff, defendant, Carrie M. Mertz, appeals. Affirmed.

Del Cary Smith, L. J. Birdseye, and George M. Ferris, for appellant. R. J. Danson, for respondent.

PER CURIAM. The appellant was convicted of rape on the person of a female child under the age of consent, and appeals from the judgment pronounced upon him. The respondent moves to strike the state

ROOT, J. Respondent brought this action against appellant and her husband for goods, wares, and merchandise alleged to have been sold and delivered to them both, and obtained judgment against each and the community which they constituted. From this judgment the wife appeals.

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