AGENCY (Continued). ca ting to the principal the fact that he had purchased the stock and was the owner of it, where he did not disclose the fact that he had purchased it for the first price authorized, and was mak ing a profit of $1,400 upon his purchase. (Id.) 5. CONTRACT FOR EXCHANGE OF LANDS— EXECUTION BY AGENT_AB SENCE OF WRITTEN AUTHORITY—ORAL CONSENT.— A contract for the exchange of lands belonging to a wife, executed by her husband as her agent, without her presence, and without her written authority or her written ratification of the exchange, is not binding upon her; and her oral consent to the exchange is not the equivalent of such written authority or written ratification thereof. (Shanks & March v. Michael, 553.) 6. BROKER'S COMMISSIONS NOT EARNED — UNILATERAL CONTRACT EXCHANGE NOT AFFECTED-WANT OF CONSIDERATION.-A written agreement by the owner of land to pay a broker's commission for effecting an exchange thereof with the property of the wife is unilateral, and without consideration, where no written consent of the wife to the exchange was procured, and no exchange was accomplished. The broker's commissions are not earned by securing her oral consent, in the absence of a special contract to that effect. (Id.) 7. JOINT BUSINESS ENTERPRISE-EQUAL SHARES—PURCHASE OF PAT ENTS-UNFAIR ADVANTAGE BY ASSOCIATE-RECOVERY OF BENEFIT.Where defendant entered into a joint business enterprise with plaintiff, who put in his business at its true valuation, and it was agreed jointly to purchase the exclusive right to use in the county certain valuable letters patent for purposes of the business, under an agreement that each was to be the owner of and pay the undivided onehalf of the whole enterprise, under a representation of defendant to plaintiff that the letters patent could be purchased for $8,000, which was relied upon and agreed to by plaintiff, in ignorance of the fact conceded by defendant that he already had a contract to buy such exclusive right for $5,000, or to sell it on commission for $3,000 more, and he in fact paid only $5,000 therefor, and turned it into the enterprise as $8,000, the plaintiff, upon discovery of the facts, is entitled to recover from defendant the benefit of the contract in the sum of $1,500. (Humburg v. Lotz, 438.) 8. MUTUAL AGENCY-FIDUCIARY RELATIONS-OBLIGATION OF PARTIES. When plaintiff and defendant agreed to enter into the common enterprise together, each one became the agent of the other in regard to the purchase of the property and the mana goment of the business. They occupied fiduciary relations to each other, and neither could take advantage of the other for his own benefit by dealings in the name of both, and in furtherance of the common enterprise. Defendant was bound to act in the highest good faith to plaintiff, and AGENCY (Continued). will not be allowed to obtain any advantage over him by misrepresentation or concealment. (Id.) 9. INJURY TO PLAINTIFF IMMATERIAL-RIGHT TO SHARE IN BEnefit of BARGAIN.-Though the plaintiff was in fact injured by reason of his payment of $1,500 more than he would have been required to pay if defendant had paid his just part of the purchase price, yet a person in a relation of trust and confidence will not be upheld in violating his trust to his own benefit, because the entire trust transaction did not injure the party whose trust has been betrayed in the particular transaction. Each party, in such case, has the right to enjoy his proportion of the benefit of a bargain made by either. (Id.) 10. FINDINGS-SUPPORT OF JUDGMENT-IMMATERIAL ISSUE AS TO PARTNERSHIP. Where the findings support the judgment and sufficiently show the fiduciary position occupied by the parties toward each other, it is immaterial whether they were or were not copartners in the technical sense; and it was not necessary for the court to find in express terms upon the issue made by the pleadings that plaintiff and defendant entered into an agreement to become partners. (Id.) 11. FINDING NEGATIVING ANSWER-CHARACTER OF CONTRACT.-The finding that plaintiff and defendant jointly agreed to purchase the exclusive right to use the patents in the county is inconsistent with and negatives an averment in the answer that the contract was for the purchase by plaintiff of a half interest in defendant's option for $4,000. (Id.) 12. PLEA OF CORPORATION FORMED BY PARTIES-IMMATERIAL ISSUE.— The fact pleaded in the answer, if true, that plaintiff and defendant formed a corporation to conduct the business after the purchase, and that plaintiff sold his shares at a profit, would not justify the defendant in keeping the $1,500, which in justice he owes to the plaintiff, and is wholly immaterial. (Id.) 13. EVIDENCE-EFFECT OF SUPPOSED KNOWLEDGE-MATERIALITY.-The question whether, if plaintiff had known that defendant had a credit of $3,000 at the time, and was to pay $2,500 only, he would have gone into the arrangement, could not be objected to as immaterial. It was material to know whether or not plaintiff would have gone into the arrangement if he had known that defendant was taking advantage of him to the extent of $1,500. (Id.) See Brokers; Master and Servant; Negligence, 15; Promissory ALIMONY. See Divorce. APPEAL, 1. APPEAL FROM JUDGMENT NOT CONSIDERED.—An appeal from the judgment not taken within the time allowed by law will not be con sidered. (Pogue v. Ball, 406.) 2. REVIEW OF EVIDENCE-STATEMENT—SEPARATE SPECIFICATIONS OF INSUFFICIENCY.—Where it appears that the specifications of insufficiency of the evidence, though' embodied in a different document from the statement on motion for a new trial, were in fact treated by the counsel and the court as part thereof, they must be so con sidered upon appeal. (Bixby v. Bastady, 527.) 3. ARGUMENT-QUESTIONS REVISED IN REPLY BRIEF.—The appellate court will not, unless under exceptional circumstances, consider questions raised for the first time in the reply brief of the appellant, not in any manner referred to in the opening brief. (Max well v. Fresno City Ry. Co., 745.) 4. NONSUIT— REVIEW OF GROUNDS UPON APPEAL.—Where a nonsuit has been granted by the trial court, the nonsuit must be sustained upon appeal if it might have been properly granted upon any ground, regardless of the particular ground assigned by the trial judge. (Bailey v. Brown, 515.) 5. NONSUIT_ORDER FOR JUDGMENT-FINAL JUDGMENT NOT SHOWN DISMISSAL.-An order granting a nonsuit, and ordering judgment of nonsuit is not a final judgment, and is not appealable; and where the record shows no final judgment entered in pursuance of the order, an appeal from such order, as from a judgment of nonsuit, will be dismissed. (Stebbins v. Larson, 482.) 6. FORECLOSURE OF MORTGAGE-APPEAL BY CONTESTING LIENHOLDER SERVICE OF NOTICE-DEFAULTING MORTGAGORS NOT SERVED—DisMISSAL.–Upon appeal from a judgment foreclosing a mortgage by a subsequent lienholder, who contested its validity, the defaulting mortgagors are adverse parties, who must be served with the notice of appeal, and upon failure to prove service thereof upon them, the appeal must be dismissed. (Koyer v. Benedict, 48.) 7. IMPROPER SERVICE BY MAIL-KNOWN RESIDENCE IN SAME CITY. Where it appears that the appellant and the mortgagors reside in the same city, a service of notice by mail upon them at their known place of residence therein is improper, and cannot sustain the appeal. In such case the service must be made at the known place of residence, as provided in subdivision 2 of section 1011 of the Code of Civil Procedure. (Id.) 8. MOTION TO DISMISS-ORDER EXTENDING TIME TO FILE TRANSCRIPT. On a motion to dismiss an appeal an order of this court extend. ing the time to file the transcript cannot be attacked. It is the practice of this court to be liberal in granting extensions of time . APPEAL (Continued). where no delay in the hearing of the case will result. (Gabel v. Page, 509.) See Divorce, 22; Estates of Deceased Persons, 1, 8; Evidence, 8; Execution, 1; Justice's Court, 1-5; Mortgage, 1, 16, 19; Negligence, 4; New Trial, 1-3, 6-11; Police Power, 6. ASSIGNMENT. See Insurance, 1-3; Landlord and Tenant, 10-13; Master and Servant, 1-3; Pledge, 4-6; Promissory Note, 4, 5. BANK 1. ACTION FOR BANK DEPOSIT-SUFFICIENCY OF ANSWER-DENIALSSale of Draft.—In an action to recover the sum of $1,000 alleged to have been deposited by plaintiff in defendant bank, under an alleged agreement to repay the same upon demand to plaintiff or order, where the complaint avers a demand and refusal, and does not count on a dishonored bill of exchange, an answer denying the deposit, or any agreement to pay the same or any part thereof, to plaintiff or his order, and denying the receipt of any money from plaintiff, except that it sold plaintiff a bill of exchange payable to the order of a third party for $1,000, and received $1,000 therefor, is sufficient as against a general demurrer to the answer. (Anderson v. Bank of Santa Cruz County, 427.) 2. EVIDENCE-IMPROPER NONSUIT.-Where plaintiff's evidence showed an original deposit of $1,000 in the bank, and that that money had never been repaid, and that several months subsequently the presi dent of the bank promised to repay the money as soon as the draft was returned, it was error for the court to grant a nonsuit upon this testimony. (Id.) 3. PRIMA FACIE CASE-IMPLIED PROMISE TO REPAY DEPOSIT.-The proof of a deposit of $1,000 in the bank as an original transaction was sufficient to make a prima facie case, and to raise an implied promise to repay the same. (Id.) 4. ADMISSION OF MOTION FOR NONSUIT.-A motion for a nonsuit admits the truth of plaintiff's evidence, and every inference of fact that can be legitimately deduced therefrom. (Id.) 5. SUBSEQUENT PROMISE TO PAY.-The evidence tending to show a subsequent promise of the defendant to repay the money when a draft was returned fails to show the connection of the draft with the original transaction, and the nonsuit could not be granted merely because it was not proved that the draft was returned. (Id.) See Insurance. BANKRUPTCY. See Sale, 15, 16. BIGAMY. See Habeas Corpus, 6. 4 Cal. App.--50 BILL OF EXCHANGE. See Bank. BROKERS. 1. ACTION BY REAL ESTATE BROKER-COMMISSION-EVIDENCE-IN SUFFICIENT CONTRACT-PROPOSITION-INADEQUATE OFFER OF PROOF -NONSUIT. In an action by a real estate broker to recover commissions upon a sale of real estate, where the instrument offered in evidence did not purport on its face to be a contract to employ plaintiff as a broker or agent to purchase real property, but was a proposition to ascertain whether it could be purchased at a designated price, and such offer was unaccompanied by any adequate offer to prove that plaintiff had procured a binding contract from the owners at the price designated, which defendant could enforce, or had brought the owners and defendant together so that the latter would have an opportunity to secure a contract at that price, and the facts which the plaintiff offered to prove were insufficient to render the instrument admissible, it was properly excluded from evidence, and a nonsuit was properly granted. (Logan v. McMullen, 154.) 2. BROKERS' COMMISSIONS-LEASEHOLD-FINDINGS AGAINST EVIDENCE -NONSUIT.-In action to recover brokers' commissions against the owners of land for procuring a lessee, where the evidence shows without conflict that the owners proposed to pay an agreed commission if a tenant was secured at a specified rental, which was not complied with, and that he might procure an offer, and the only offers procured were delivered in good faith, and that ended further effort on the part of plaintiff and his assignee, the fact that subsequently the offering party and the owners agreed upon terms between themselves would not entitle the plaintiff to recover commissions; and findings in his favor were against the evidence, and a motion for a nonsuit should have been granted. (Arnold v. Woollacott, 500.) 3. PROCURING OF OFFERS FROM FORMER CLIENT-REJECTION-RIGHT OF CLIENT TO DISCONTINUE.-When the offers were procured from former client of plaintiff's firm, whose offers were finally rejected, and checks tendered by him were returned to him, he had the right to discontinue employment of plaintiff's firm, and to negotiate thereafter on his own behalf, where no irrevocable agency had been given; and they could not thereafter make another offer from him without his consent. (Id.) 4. BROKER'S COMMISSION-SALE OF MINE-ORAL AGREEMENT WITH HOLDER OF OPTION.-An oral agreement by one who holds an option to purchase a mine, and who has an interest therein, to divide with another, for his services in procuring a sale of the mine, the sum paid for the option, and a large sum which was intended to pay for the interest of the holder of the option, one-half of which was |