years of age who is competent to be a witness in the action, other than the plaintiff. It is the contention of the appellant that due service was not made in this case, for the reason that it does not appear from the affidavit of Allen that he was 21 years old at the time the service was made; the affidavit going only to the extent that he was 21 years old at the time he made the affidavit, viz., on the 27th day of December, 1905-the service having been made on December 2, 1905. Technical as this may appear, this objection is sustained by authority, and literally there is no proof or showing that the summons was served by a person who was competent under the law to serve it.

conclusive of the question of jurisdiction, in the absence of an affirmative showing to the contrary by the record itself, and that it might well occur that, although the summons which was attacked was insufficient, if sufficient time had elapsed for the service of another and correct summons, the service of such summons would be presumed, and that it would be wrong to allow judgments of long standing to be destroyed by opportunities which might be presented to defendants to abstract from the records the proper proof of service and leave only as evidence the insufficient proof. But in this case, in addition to the fact that the court does not certify a due and legal service, but certifies only that the defendant was served personally with a true copy of the summons and complaint, and the further fact that the service of the summons fails to show a want of due service, we think it must be held that the default judgment was entered without jurisdiction. The appointment of the receiver, having been based upon the default judgment, was also without jurisdiction, and must there

lant is bound by his general appearance in any order of the court made subsequent to such general appearance, it does not bind him as to orders or judgments of the court made without jurisdiction before his appear

ance.

It is also contended that the recital of the court would be deemed conclusive upon this court that due and proper service of the summons and complaint was made, and many cases from this court are cited to sustain that doctrine. An examination of the cases, however, will show that there is a distinction between collateral attacks on judgments and judgments that are contested by appeal. The original case, upon which most of the cases in this court are based, was Rogers v. Miller, 13 Wash. 82, 42 Pac. 525, 52 Am. St. Rep. 20, where the rule was laid down emphatically that, as against collateral attack upon the ground that a summons was insufficient to give the court jurisdiction, it would be presumed, in aid of a decree which recites that service of the complaint and notice had been duly made according to the law, that another and sufficient summons was issued where there was ample time for the service of another summons after the completion of the publication of the first. That was a collateral attack upon a judgment many years after it had been rendered, while this is an appeal from a judgment promptly prosecuted as soon as it was known that the default judgment had been entered. The case of Rogers v. Miller, supra, and the cases upon which it is based and which have followed it. went upon the theory, which was a plausible one, that the recital by the court that due and sufficient notice had been given was

having generally appeared in the action, must be held to be in court for the purposes of any subsequent action on the part of the court. Woodham v. Anderson, 32 Wash. 500, 73 Pac. 536; Bennett v. Supreme Tent, etc., Maccabees, 40 Wash. 431, 82 Pac. 744, 2 L. R. A. (N. S.) 389.

The appellant will therefore be allowed to file his answer, and the cause will be remanded, with instructions to vacate the default judgment and to proceed with the case upon its merits. On the merits of the case we express no opinion.

MOUNT, C. J., and RUDKIN, ROOT, and CROW, JJ., concur. FULLERTON and HADLEY, JJ., did not sit.

(44 Wash. 697)

FRENCII v. AJAX OIL & DEVELOPMENT CO.

(Supreme Court of Washington. Nov. 9, 1906.) Appeal from Superior Court, King County: Boyd J. Tallman, Judge.

Action by Walter M. French against the Ajax Oil & Development Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

W. F. Hays and Fred Page Tustin, for appellant. Allen & French, for respondent.

PER CURIAM. For the reasons given in the opinion in French v. Ajax Oil & Developmént Company (No. 6,303) 87 Pac. 359, the judgment in this cause will be reversed and remanded, with instructions to proceed as in that case.

(44 Wash. 326)

PEIRCE v. WHEELER et al. (Supreme Court of Washington. Nov. 9, 1906.) 1. TRIAL-FINDINGS OF FACTS-CONCLUSIONS OF LAW-SEPARATION.

Where findings of facts and conclusions of law were written on the same page, but were clearly segregated by separate statement and paragraph, they were separately stated.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 924-926.]

2. SAME-EQUITABLE ACTIONS.

The statute requiring findings of fact and conclusions of law to be separately stated does not apply to equitable actions.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 924-926.]

3. SPECIFIC PERFORMANCE-VALIDITY OF CONTRACT-AUTHORITY OF AGENT-STATUTES.

Ballinger's Ann. Codes & St. § 4576, subd. 5 (Laws 1905, p. 110. c. 58), provides that any contract authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission shall be void unless some note or memorandum thereof be in writing and signed by the party to be charged, etc. Held, that such section affected contracts only involving the relations of the broker and the owner respecting the broker's right to commissions, and that the fact that a broker's authority was not in writing was no defense to a suit for specific performance of a contract of sale negotiated by him.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 57, 113; vol 8, Cent. Dig. Brokers, § 44.]

4. SAME-VALIDITY OF CONTRACT-BROKER'S AUTHORITY-EVIDENCE-FINDINGS.

In a suit to compel specific performance of a contract for the sale of land, evidence held to justify a finding that the broker who negotiated the contract had authority from defendant so to do.

5. SAME-MEMORANDUM-DEFINITENESS.

A memorandum of a contract for the sale of land recited a receipt of $500 deposit on certain described property, price $12,000. terms $4.000 cash, balance as per contract with Tacoma Land Company, and provided that no further payment should be required within six months from date. Held, that the contract was sufficiently definite for specific performance.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 83-85.] 6. SAME-TENDER BEFORE SUIT.

Where a contract for the sale of land provided for a payment of $4,000 cash, balance in accordance with a contract with another, provided that no further payment should be required within six months from the date of the sale, which time had expired when suit was brought for specific performance, complainant was under no obligation to pay or tender the difference between the amount due under the

contract with the third person and the purchase price before commencing such suit.

[Ed. Note.-For cases in point. see vol. 44, Cent. Dig. Specific Performance, §§ 286-295.] Appeal from Superior Court, Pierce County: Thad. Huston, Judge.

Action by Joshua Peirce against J. W. Wheeler and another. From a judgment for plaintiff, defendant Wheeler appeals. Affirmed.

Byers & Byers, for appellant. T. L. Stiles, for respondent.

HADLEY, J. This is an action to enforce specific performance of a contract to

sell real estate. The defendant Tacoma Land & Improvement Company was the owner of a certain 80-acre tract of land, and it contracted in writing to sell the same to one. Gregg for the consideration of $12,000, a part of which was to be paid in cash, and the remainder by installment payments covering a period of four years. Thereafter, with the assent of said company, Gregg sold and assigned his interest in the said contract to the defendant Wheeler. Wheeler took possession of the land and caused it to be platted under the name of "Barker's Addition to the City of Tacoma." Thereafter Wheeler sold his interest in many of the lots within said addition, but the plaintiff alleges that, on the 19th day of February, 1906, he still retained the interest which the said contract gave him in 368 of the lots. It is also alleged that on the said date Wheeler employed one Gregory as his agent to procure a purchaser for said 368 lots, and to contract for the sale of the same to any purchaser whom he might find; that on said day Gregory offered to sell said lots to the plaintiff for the sum of $12,000, of which sum $4,000 was to be paid in cash upon the passage of the necessary papers, and the balance according to the terms of the said Tacoma Land & Improvement Company contract, as the payments should become due thereunder; that the plaintiff accepted the offer, and that Gregory communicated the fact of the sale and the terms thereof to Wheeler, who assented thereto and directed Gregory to proceed and complete the sale: that plaintiff paid to Gregory $500 as a part of said cash payment of $4,000, and that Gregory executed and delivered to plaintiff a contract in writing for the sale of the lots upon the terms mentioned: that all of said facts were communicated by Gregory to Wheeler. and that the latter assented thereto; that thereafter Wheeler refused to be bound by said contract, and refused either to execute a deed to plaintiff for the lots or to assign said Tacoma Land & Improvement Company contract: that plaintiff has offered to pay in the manner provided by the contract, and now brings into court the sum of $3,500, the balance of the cash payment, for the use of said Wheeler. Wheeler answered, and denied generally the material allegations above stated. The cause was tried by the court without a jury, and resulted in a judgment requiring the defendant Wheeler to perform the contract. He has appealed from the judgment.

No

Appellant complains that the findings of facts and conclusions of law were not separately stated. It is true they appear upon the same page, but the conclusions of law are clearly segregated by separate statement and paragraph from the findings of facts. one can be confused or misled by the findings and conclusions as stated, and appellant's rights were in no way prejudiced thereby. Moreover, this is an equitable action, and this court has held that the statute with relation to findings of facts does not apply to such

actions. White Crest Canning Company v. Sims, 30 Wash. 374, 70 Pac. 1003.

The evidence does not disclose any written authority from appellant to Gregory as his agent to sell the real estate in question, for which reason appellant contends that the con tract which Gregory made with respondent cannot be enforced. This contention is .based upon the statute of 1905 as found in chapter 58 of the Session Laws of that year (Laws 1905, p. 110). It will be observed that the statute is an amendment to section 4576, Ballinger's Ann. Codes & St., relating to contracts and providing that certain contracts shall be void unless in writing. The pertinent part of the statute is as follows: "In the following cases specified in this section any agreement, contract and promise shall be void, unless such agreement, contract, or promise, or some note or memorandum thereof, be in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; that is to say: * * * (5) An agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission." We think it is manifest that the Legislature intended to reach such contracts only as involve the relations of an owner and his agent with respect to the recovery of compensation or commission for services in selling or purchasing real estate. To hold that the statute was intended to require the authority of the agent to be in writing so far as the rights of a vendor or purchaser who deals with the agent of another are concerned would be to read into the statute something that is by no means either clearly or necessarily implied. The contract which the statute declares to be void unless in writing is one for the payment of a commission to the agent, but it does not say that the actual authority to sell or purchase must be in writing. California has a statute containing the exact words found in our own. Deering's Civ. Code Cal. § 1624, subd. 6. The California Supreme Court has recognized the force of the statute as applied to express contracts for the payment of commissions. McCarthy v. Loupe, 62 Cal. 299; Myres v. Surryhne, 67 Cal. 657, 8 Pac. 523. The above decisions are restricted to the one subject of the enforcement of contracts to pay commissions, and do not hold that the statute relates to the matter of an agent's actual authority to sell or purchase. That such could not have been the intention of the California statute is accentuated by the fact that the Legislature of that state has passed another statute dealing directly with the authority of the agent which requires the authority to be in writing. Deering's Civ. Code Cal. § 1741. We do not appear to have such a statute in this state. Appellant cites Halsell v. Renfrow (Okl.) 78 Pac. 118, as supporting his contention that the agent's authority must be in writing. The opinion shows, however, that it is based upon a statute, and an ex

amination of section 780, subd. 5, of Wilson's Revised and Annotated Statutes of 1903 of Oklahoma, shows that the agent's authority is expressly required to be in writing and subscribed by the party sought to be charged. In Carstens v. McReavy, 1 Wash. St. 359, 25 Pac. 471, this court said: "The statute of frauds may be satisfied by the execution of a contract for the sale of lands by the hand of another person than the party to be charged, if that person be thereunto lawfully authorized. And it is well settled that such third person may be thus lawfully authorized orally, by written direction not under seal, and even by a course of conduct amounting to estoppel." The above rule was approved in Horr v. Hollis, 20 Wash. 424, 55 Pac. 565, and in Monfort v. McDonough, 20 Wash. 710, 54 Pac. 1121. It was therefore established in this state, before the passage of the act of 1905, that oral authority to an agent is sufficient for him to bind his principal when as such agent he signs a memorandum in writing, and that the principal is thereby charged. It is true the statute of frauds requires that a contract for the sale of lands, to be enforceable, must be in writing, and it must be signed by the party to be charged or by some other person thereunto by him lawfully authorized. That the authority of such other person to sign may, however, be in parol, unless prohibited by express statute, this court has already held as shown above, and we hold that the act of 1905, invoked here, has not changed the rule in that regard.

It is urged that the evidence here neither shows authority in the agent to make the contract nor a ratification of it by appellant. It is not disputed that appellant expressly authorized Gregory to find a purchaser for at least practically all of the lots specified in the contract. Appellant claims that he reserved certain improved lots included in an inclosure wherein stood an office building erected for the purpose of facilitating the sale of the lots in the addition. A local agent of appellant, who had been making miscellaneous retail sales of lots in the addition, also resided in the building. Gregory says, however, that this reservation was not made. Appellant also says that he expected Gregory to confer with the local agent as to lots already sold by him. It appears that the list which was used by Gregory was procured from the local agent, but it is claimed that the latter had contracted for the sale of some of the lots before the contract was made with respondent. The court found that the appellant authorized Gregory to find a purchaser for the unsold lots in the addition, and that there were then 368 unsold lots; that the price of the property was not then definitely fixed, but that Gregory was to fix a price and terms and get an offer; that he procured the offer from respondent alleged in the complaint, accepted it subject to confirmation by appellant, received $500 on account of the

cash payment, and executed and delivered to respondent a written memorandum signed by himself; that he thereupon informed appellant what he had done; that appellant approved the same, and that he then informed respondent of such approval; that thereafter, and before the commencement of this action, appellant refused to carry out the contract either by deed for the lots or by assignment of the Tacoma Land & Improvement Company contract. We think there is sufficient evidence to sustain the findings, and that we should not disturb them.

It is also contended that the contract is too indefinite to be enforced. The essential part of the written memorandum reads as follows:

"Tacoma, Wash. 2-19, 1906.

"Received of Joshua Peirce Five Hundred no/100 Dollars Deposit on lots 368 lots in Barker's Add. to Tacoma, Wash., as per schedule delivered him 2-16-06.

"[Here follows description of the lots.] "Price $12,000.00 .....

... Dollars

"Terms $4,000.00 Cash, bal. as per contract with Tacoma Land Co., and provided no further payment within six months from date. Sold subject to approval of owner.

"$500.00."

It will be observed that the contract fixes the entire purchase price at $12,000, and calls for a cash payment of $4,000, with balance as per contract with Tacoma Land Company, and with the further provision as follows: "Provided no further payment within six months from date." It thus appears that a balance of $8,000 was to be paid after the first cash payment. It is conceded that appellant's interest in the property was created by the land company's contract, payments upon which were yet to be made, and it is manifest from the memorandum delivered to respondent that payment of the balance unpaid upon that contract was to constitute a part of the $12,000. The remaining payments upon the land company's contract were not yet due, and it is evident that respondent was to pay these as they became due. The memorandum concluded with the statement that no further payment was to be made within six months. The next payment upon the land company's contract matured, however, August 15, 1906, which was four days before the expiration of six months from the date of the memorandum. It is apparent that that payment, which was to be made "as per contract with Tacoma Land Co.," was required to be made before six months, and the concluding clause must, therefore, by strict construction, be held to have referred to the payment of any additional part of the $12,000 not covered by the unpaid balance under the land company's contract. We think it is apparent that the parties were not at the time advised of the exact balance under the land company's contract; that they estimated it to be about $8,000, but that they intended to provide for

This

its payment as it became due; and that any remaining part of the $12,000, if any, should be ascertained and should be paid at the end of six months. The complaint alleges that the balance upon the land company's contract was $7,500, but the evidence discloses that it was not so much. The full difference between $8,000 and the actual balance upon the land contract was, however, payable six months from date of the memorandum. suit was commenced and decree was entered before that time, and respondent was not under obligation to pay or tender the amount before bringing this suit. The decree provides that appellant shall assign and transfer to respondent all of his rights under the land company contract, and that respondent shall assume the obligations of appellant under the said contract. We think this is in accordance with the contract between the parties; the balance of the first cash payment having been paid into court, Respondent had made the payment required before the transfer was to be made, and was entitled to the transfer. As to any balance that was to be paid appellant outside of the amount to the land company, we have seen that it was not yet due, and its payment was a matter for the future. Appellant claims that the amount is $800, but that matter is not for our determination now. We simply find that the contract was sufficiently definite for specific enforcement, and that all payments that were due under it had been made or tendered prior to the decree.

It is contended that the evidence shows that appellant's local agent had contracted for the sale of seven, possibly nine, of these lots before the contract was made with respondent. Whatever may have been the fact in that regard, we think the decrée does not prejudice appellant's rights. It calls only for the transfer from appellant to respondent of "all of the rights" of appellant "under said contract." If other persons ad previously acquired from appellant rights under the same contract, they are not affected by the decree. If respondent does not get by the decree all for which his contract calls, still, if he is willing to accept the actual interest of appellant in the lots covered by the contract, appellant cannot complain. The judgment is affirmed.