was to be applied as payments on the mortgage indebtedness so as to release from the mortgage all of the land sold; that any remainder was to be paid to the Investment Company, and that Lee & Whipple, upon performance by them, were to be entitled to all other interests in the land. Respondents contend that 158.25 acres at $150 per acre would not produce sufficient funds to pay $26,500, the total amount of principal mentioned in the three mortgages. In the light of the evidence we do not construe the contract as directing an application of the purchase money to the payment of the entire $26,500. By the terms of the mortgages to which the contract referred, the payment of $19,500 only was needed to discharge the three mortgage liens on all of the 158.25 acres sold to Lee & Young. The Knight & Williams mortgages expressly stipulated that all of the land subject to their liens, and afterwards sold to Lee & Young, was to be released upon the payment of $12,000. This being true, such payment when made would entitle any interested party to demand the release. Should the mortgagees refuse, the Investment Company or Lee & Whipple, its grantees, could have compelled them to execute and deliver the releases. 27 Cyc. 1415, Gammel v. Goode, 103 Iowa 301, 72 N. W. 531; Lane v. Allen, 162 Ill. 426, 44 N. E. 831; Obern v. Gilbert, 6 Dak. 119, 50 N. W. 620.

J. R. Young, Lee's former partner, who is not interested in the result of this litigation, testified that, before Whipple acquired his interests, Lee & Young attempted to negotiate a sale of the 158.25 acres at $200 per acre, which would yield them a profit; that he and Lee participated in these negotiations, Lee also representing the Investment Company. It is manifest from this evidence that, if they had previously contracted to pay $150 per acre, and also the mortgage liens for the land, they were striving to sell for less than cost and not at a profit. These statements, although denied by Lee, harmonize with the evidence of other witnesses, also denied by him, to the effect that at other times

Opinion Per CROW, J.

[58 Wash. he repeatedly offered to sell for less than he now contends Lee & Young were to pay for the land. To reach the conclusion for which the respondents contend, we would be compelled to rely upon, credit, and accept evidence of D. H. Lee, which we think has been effectually contradicted and refuted by undisputed circumstances, other written contracts, records of court proceedings, and the testimony of numerous witnesses. Although the trial judge admitted extrinsic evidence to aid in an interpretation of the contract in case such evidence should be held proper by this court, we incline to the view that he must have reached his own conclusions from the contract itself, without the aid of extrinsic evidence, and that in so doing he erred.

We regret that the volume of the record forbids a detailed statement and discussion of the facts upon which we predicate our conclusions. This cause is before us for trial de novo. Having examined all the evidence we cannot accept the statements of D. H. Lee upon which the respondents are compelled to rely, and do rely. He has controlled the business affairs of the Investment Company since its organization. All of its acts have been performed at his instance. He has dominated its policy. With the exception of two minor officers of the corporation, who seem to be subject to his dictation and control, he has disagreed and found fault with nearly every person with whom he has come in contact. He has critcised one Owen, a former secretary of the Investment Company, accusing him of wrongfully doing away with the original minute book. He has charged Knight & Williams with wrongful and fraudulent acts. He charges that J. R. Young, his first partner; the appellant Whipple, his second partner; the Vanderventer-Davis Company, a corporation, and one Hayes, its manager, have violated their agreements with him, and he has attempted to forfeit their contracts. In his evidence he, by innuendo, accused the receiver, the receiver's attorneys, and other parties, with mutilating the

minute book of the corporation in an attempt to discredit him. He positively contradicted statements of many disinterested witnesses. In brief, he seems to be in harmony with no one, and unable to transact business satisfactorily on any occasion. He was voted, and claims to have earned, a salary of $5,000 from the corporation, although its records and business affairs have assumed a most deplorable tangle during his administration. During the same period he contracted to give substantially all of his time to the business of Lee & Young. The minute book which he introduced in evidence to sustain his contentions is, by reason of its history and condition, unworthy of serious consideration. A written contract between the Investment Company and Lee & Young, as parties of the first part, and Vanderventer-Davis Company, as party of the second part, executed January 20, 1906, sustains the appellant's position as to the purchase price, although the respondents vigorously contend that it cannot be so construed. In referring to the contract upon which this action is predicated, it contains the following recital:

"And whereas, the said American Investment and Improvement Company made a contract on the 20th day of November, 1905, with D. H. Lee and J. R. Young, copartners as Lee & Young, for the sale and purchase of the said lands at the set price of one hundred and fifty dollars ($150.00) per acre, to be paid by the said Lee & Young to the American Investment & Improvement Company."

Later statements in this contract to which respondents refer do not, in our opinion, negative this statement. Further discussion is unnecessary.

We hold that the price to be paid by the appellant and D. H. Lee was $150 per acre only, and that it should be first applied to the satisfaction of the mortgage liens on the 158.25 acres only. It is ordered that the decree of the trial court be modified in accordance with this opinion; that a further extension of the time, to be fixed by the trial court, be granted the appellant for the performance of the con

tract, and that otherwise the judgment be affirmed. The appellant will recover his costs on this appeal.

RUDKIN, C. J., PARKER, DUNBAR, and MOUNT, JJ., con

cur.

[No. 8372. Department Two. May 4, 1910.]

L. K. CHURCH et al., Respondents, v. WILKESON-TRIPP COMPANY et al., Appellants, J. D. LOWMAN et al., Defendants.1

BROKERS-CONTRACT-BREACH-ACTION FOR DAMAGES-EVIDENCESUFFICIENCY. The evidence is sufficient to entitle brokers to recover damages for breach of a contract, and a nonsuit is properly denied, where it appears that they were employed by the defendants, promoters of a mining corporation, to sell bonds and stock on commission, that the defendants refused, on demand, to perfect their title to the property or to deliver the bonds, and that the plaintiffs then gave notice that they would rescind the contract and hold the promoters for their commissions as damages sustained.

PARTNERSHIP-BUSINESS NAME-STATUTORY PROVISIONS-RIGHT TO SUE. Partners may maintain an action upon a contract entered into by them as individuals without having complied with Rem. & Bal. Code, § 8369, requiring the filing of a certificate showing their assumed business name and the names of the members of the firm, where before suit brought they filed the required certificate showing that they were then doing business under the assumed name by which they sued, and that they were the only members of the firm.

BROKERS CONTRACTS STIPULATIONS - CONSTRUCTION - WAIVER. Where a broker's contract provided for the sale of bonds on commission within a specified time after receiving written notice of the deposit of the bonds, notice in writing is for the protection of all the parties, and is waived where the authorized agent of the principals notified the brokers that the bonds were ready for sale and delivery and that the notice would be waived, and the brokers relied and acted thereon.

BROKERS-CONTRACT OF EMPLOYMENT BREACH DAMAGES-ExPENSES INCURRED. Where a broker's contract for the sale of bonds on commission required the brokers to pay all expenses and outlay for advertising, etc., and on breach of the contract, the brokers sued

'Reported in 108 Pac. 596; 109 Pac. 113.

to recover all the commissions that they might have earned, they are not entitled to reimbursement for expenses incurred, although pleaded, and evidence thereof should be excluded.

BROKERS-CONTRACTS-ACTION FOR BREACH-ISSUES AND PROOFEVIDENCE-ADMISSIBILITY. In an action by brokers for damages for breach of a contract to sell bonds on commission, breach of the contract having resulted from the admitted failure of the defendants to perfect their title to the property, it is error likely to prejudice the jury to admit in evidence escrow deeds showing the consideration that was to have been paid, the deeds not having been delivered and there being no issue in regard to the title or failure of title.

"DAMAGES-BREACH OF CONTRACT-CONTEMPLATED PROFITS BROKERS -COMMISSIONS. Brokers seeking damages for breach of a contract to sell bonds on commission may recover for loss of profits, since the same are directly contemplated in the contract; but the loss must be reasonably certain, to be ascertained by the jury, although not always capable of precise computation.

EVIDENCE-OPINIONS-CONTEMPLATED PROFITS.

The opinion of a

witness that brokers could have earned all their commissions on the sale of bonds is inadmissible as a conclusion as to the probable results, and which must be drawn by the jury.

BROKERS-CONTRACTS-BREACH-DAMAGES CONTEMPLATED PROFITS In an action by

-EVIDENCE-SUFFICIENCY-EXCESSIVE VERDICT. brokers to recover damages for breach of a contract to sell an issue of $300,000 in bonds of a mining company, within a specified time, the evidence is insufficient to show that they could have sold all the bonds and earned the entire commissions, where plaintiffs merely proved probable sales to the amount of $25,250, and it appeared that the $300,000 was secured on coal lands recently purchased for the sum of $65,000; and a verdict for the entire commissions is based on conjecture and speculation, and should be reduced to the amount of the commissions on the probable sales shown.

COSTS ON APPEAL OF APPEAL BONDS. Under Rem. & Bal. Code, § 6226, providing that any receiver, assignee, trustee, guardian, executor, etc., may include as part of his lawful expenses a reasonable sum paid to a corporation for a surety bond, and that the party entitled to recover costs may include the same in all actions and proceedings, costs on appeal will be allowed for the premium paid for a surety company's bond upon appeal given by a receiver, trustee, etc.

Appeal from a judgment of the superior court for King county, Gay, J., entered April 17, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, for $26,750 for