The story referred to in the question was the one related to defendant by her daughter; and the witness had just answered that upon the appellant's statement to her of its details, prior to the commission of the alleged offense, she was inclined to give credence to it. If this were all, it would seem a meager excuse for the introduction of a mass of wholly incompetent evidence against the accused. While we appreciate the right of opposing counsel to briskly enter when the bars are thrown down, yet in this case we believe that state's counsel abused the privilege by impatiently leaping the barrier. [3, 4] Immediately following the answer just quoted, the prosecuting attorney interposed an objection that the evidence was clearly incompetent and improper, which objection was promptly sustained by the court. The matter was not pursued further, as a part of the defendant's case. The effect of the ruling was to strike the evidence from the record; and if counsel desired a more specific charge withdrawing it from the consideration of the jury, he should have so requested. Instead of pursuing such course, the state proved in rebuttal, by an expert witness, that children of the age of appellant's daughter very frequently suffered from hallucinations along the line indicated in her communication to her mother; and, in addition, was permitted to prove, both by Mrs. Robertson and Mr. Boyd, that the latter had never remained at the house of the former later than 9:30 o'clock in the evening during the entire time appellant's daughter was a member of the household. But not content with this, these witnesses were asked, "Is there any truth whatsoever in the story the girl has told?" To which Mrs. Robertson answered, "None whatever;" while Boyd responded, "There is positively no truth in the matter what ever." the immaterial and collateral issue; nor was the jury directed to disregard it in arriving at their verdict. It was still open to the jury to resort to the improper evidence as shedding light upon the question of whether the defendant had probable cause to believe the story told by her daughter. The jury might well have argued that because children of the age of appellant's daughter are sometimes afflicted with hallucinations, that the story told was purely imaginary, or, in view of the denials by Mrs. Robertson and Mr. Boyd, it was utterly false, and therefore defendant did not have "probable cause" to believe and act upon the same. We can conceive of no other purpose the state could have had in introducing the irrelevant testimony; hence its effect was just as injurious after the instruction was given as before. When incompetent evidence is erroneously permitted to go to a jury, and an attempt is subsequently made to withdraw it from their consideration, the direction of the court should be plain and specific, if the harm done is to be avoided. We must not be unmindful of the fact that instructions are addressed to a jury of laymen, not to trained legal minds. The question is not whether the court would have disregarded the offending testimony, but is it certain that the jury has done so. As was aptly observed by Chief Justice Pierpoint, of whom it has been said, “His wisdom was the infallibility of common sense": "The schoolboy uses his sponge to rub out the pencil marks on his slate. He eventually discovers that at some time he can never tell his sorrow that the ugly evidence of the fact, when-his pencil has scratched, and learns to however vigorously he may apply the sponge, cannot be removed." State v. Meader, 54 Vt. 126-132. Moreover, in this case there was substantial evidence tending to support the defendant's plea of mental irresponsibility, which, The child did not testify; and the all-in-if believed by the jury, would have warrantclusive question of whether there was any ed a verdict in her favor. In such cases the truth in the story told by her left the wit- courts should be very cautious in saying that nesses free to put their own construction up-clearly incompetent testimony was not prejon what she had communicated to her mother. Plainly no charge of perjury could be predicated upon such evidence. Not only was the substance of the testimony clearly incompetent, but the manner of its introduction was highly objectionable. It is urged in support of the judgment, however, that assuming the evidence to be inadmissible, the error was cured by the instructions. Relating to this point, the court charged as follows: "You are further instructed that the truth or falsity of the child's story to the defendant is not an element to be considered by you in determining your verdict, but the only element with reference to the child's story for your consideration is whether or not this story was told to the defendant, and whether the defendant had probable cause to believe it, and did believe the same." This instruction is general in its terms, and does not undertake to specify the objection udicial. While ordinarily an error in the admission of evidence is remedied by an instruction directing the jury to disregard it, the rule is by no means of universal application. Each case must rest upon its own facts, and in some instances the error may be so serious that an instruction, no matter how framed, will not avoid the mischief. A careful examination of the entire record in this case leaves us in doubt as to whether the error was cured or the impression removed. This being true, the issue must be resolved in favor of the accused. State v. Nist, 66 Wash. 55, 118 Pac. 920, Ann. Cas. 1913C, 409; State v. Thompson, 14 Wash. 285, 44 Pac. 533; Massie v. Commonwealth, supra. [5] Since the case will have to be retried, we deem it advisable to pass upon the insistence of counsel that there was no evidence justifying a verdict of assault in the second and not a partnership or joint adventure, though that degree of the offense to the jury. Under | business, the transaction was one of brokerage the facts disclosed as applied to our statutes, the distinction between assault in the first and second degrees lies in the question of intent. In the former, in order to constitute the offense, the assault must be made with Though an agreement to pay out of the profthe specific intent to kill a human being, ing upon employés, agents, or brokers, plaintiff its in some cases confers a right to an accountwhile in the latter, it is sufficient if the as-was not necessarily limited to a suit in equity sault be made with an instrument or weapon likely to produce bodily harm; no specific design being necessary. The court therefore very properly submitted to the jury both degrees of the crime. State v. Reynolds, 94 Wash. 270, 162 Pac. 358, relied upon by appellant, is not contrary to these views. In that case, the defendant was charged with assault in the second degree, and convicted of assault in the third degree. The attack was made with a pistol. Under our statute, where an assault is made with a weapon, or instrument likely to produce bodily harm, the offense is assault in the second degree, even though no grievous bodily harm is inflicted. The appellant admitted that he shot the complaining witness, but claimed that he was acting in self-defense; consequently we held that it was error to submit to the jury assault in the third degree. Under the facts in that case, the accused was guilty of assault in the second degree, or not guilty of any offense.. Some additional assignments of error are urged; but as the questions are not important, and probably will not recur upon a retrial of the cause, we shall not burden this opinion by discussing them. For the reasons indicated, the judgment will be reversed, and the cause remanded for a new trial. for an accounting, and where there were profits amounting to a specified sum, and there were no tion and no other facts calling for equitable cogcomplications in the accounts, no fiduciary relanizance, plaintiff could sue at law for the money due him on the contract, a court of law having power to order a reference to take an account, if found necessary. Department 1. Appeal from Superior Court, King County; A. W. Frater, Judge. Action by L. H. Griffiths against John H. Von Herberg and another. From a judgment dismissing the action on demurrer, plaintiff appeals. Reversed. Jay C. Allen, of Seattle, for respondents. FULLERTON, J. Appellant, Griffith, brought an action against respondents Von Herberg and Jensen upon an alleged contract for an interest in the profits of a moving picture theater. The allegations of the complaint are as follows: "(1) That during the year 1913 the defendants John H. Von Herberg and Claud S. Jensen, as & Von Herberg, Inc., were engaged in the cona corporation under the name and title of Jensen duct and operation of the certain theater in the city of Seattle, known as the Alhambra Theater, and during which conduct and operation thereof them in and about the management and operation this plaintiff was from time to time assisting thereof, and said defendants became and were fully aware of this plaintiff's skill, energy, and ELLIS, C. J., and PARKER, MAIN, and ability to aid and assist in the conduct and operFULLERTON, JJ., concur. PARTNERSHIP 9(1)-NATURE OF RELATION. As alleged by plaintiff he was negotiating with B. for the erection and operation of a theater on lots owned by B., and defendants entered into negotiations with him for the purpose of securing a lease of the theater and for an arrangement with plaintiff to continue negotiations for the construction of the building and for obtaining a lease for them for 10 years at a stipulated monthly rental, the profits arising from the operation to be divided by giving plaintiff 10 per cent. and defendants 90 per cent. Defendants agreed to carry on and operate such theater and to pay plaintiff 10 per cent. of the profits arising from its operation. Plaintiff fully carried out their wishes and induced B. to complete and furnish such theater and lease it to defendants for 10 years. Held, that there being no provision for a joint conduct of the business nor for the joint handling of the building, and plaintiff having no voice in the conduct of defendant's affairs, and having no interest in the ation of a theater, and of his intention to attempt to cause the building of a large and fine theater upon certain property in the city of Seattle, known as lots five (5) and eight (8), block twenty-six (26), A. A. Denny's third addition to the city of Seattle, which theater was afterwards built and thoroughly completed upon said lots, and became known as the Liberty Theater. "(2) That the lots aforesaid were owned by the estate of Catherine L. Blaine, deceased, of which estate E. L. Blaine was the administrator. "(3) That while negotiations were pending between this plaintiff and the said Blaine, representing the said estate, the defendants John H. Von Herberg and Claud S. Jensen entered into negotiations with this plaintiff for the purpose of securing a lease upon said theater, when the same should be completed, and for an arrangement with this plaintiff by which this plaintiff should proceed and continue to carry on said negotiations for the construction of said building, to cost not less than twenty-five thousand ($25,000) dollars when completed, the said defendants to obtain a lease for ten (10) years upon said building at the rate, price, and monthly rental of one thousand ($1,000) dollars per month, and to operate said theater for such period of ten (10) years, the profits arising from such operation to be divided between this plaintiff and the defendants upon the rate and basis that the defendants should jointly receive ninety per cent. (90%) of said profits and this plaintiff to receive ten per cent. (10%) of such profits, if any should be derived from such operation. "(4) That in accordance with said negotiations other changes were made in the character of the building constructed by the said Blaine, as such administrator, and the same was so greatly enlarged, improved, changed in form, and embellished, as to be of the full cost and value of one hundred and sixty-five thousand ($165,000) dollars. That during all the time of said negotiations, and the construction and completion of said theater, and the furnishing of the same, and preparing the same for operation, the defendants relied upon this plaintiff to perfect said negotiations and to secure for them a lease of said premises for ten (10) years, at the sum and price first of one thousand ($1,000) dollars per month, and later when said building was to be so enlarged and improved and furniture furnished by the said Blaine, as such administrator of said estate, the rental should be increased to one thousand two hundred and fifty dollars ($1,250) per month, and defendants continued to agree and pledged and bound themselves by parol with plaintiff that this plaintiff should have an interest of ten per cent. (10%) in the profits arising from the conduct and operation of said theater, which they (the defendants) pledged themselves to carry on and operate as a moving picture theater, and to furnish all and everything necessary for the complete outfit, operation, and conduct of a firstclass moving picture theater, and to receive and take care of the moneys arising from the operation of the same, and to pay over to this plaintiff the one-tenth (1/10) interest of all receipts from the operation of such theater, less the actual cost of operating the same. "(5) That thereafter this plaintiff acting in his own behalf, and in that of the defendants, fully carried out all of the wishes of the defendants and of himself, and induced the aforesaid Blaine, as administrator of the aforesaid estate, to complete in all respects what is now known as the Liberty Theater building on said lots, and the same fully furnished and ready for use by the said Blaine, as such administrator, was leased to the said defendants under the name and style of Liberty Theater Company, Inc., and the defendants took possession of said theater, and have ever since operated the same since the 19th day of November, 1913. and the one-tenth (1/10) interest of the profits, respondents demurred upon the grounds (1) that said complaint does not state facts sufficient to constitute a cause of action, and (2) because the plaintiff has no legal capacity to sue or to maintain the action. The demurrer was sustained by the court and, the appellant electing to stand upon his complaint and refusing to plead further, judgment of dismissal was rendered against him. Appeal has been taken from this judgment on the pleadings. [1] In sustaining the demurrer to the complaint, no intimation was given by the trial court as to the grounds for its ruling. In this court the respondents seek to sustain the judgment on the theory that the allegations of the complaint disclose the relationship either of partnership or of a joint adventure, and that the proper action should have been for an accounting of the alleged share in the profits of the undertaking. We think the allegations of the complaint are not susceptible of the interpretation sought to be put upon them by the respondents. Their purport merely is that the respondents employed appellant to obtain the building of a suitable structure for their moving picture business, and secure a lease of the premises for a period of 10 years at a stated rental, for which appellant was to receive as compensation for his services 10 per cent. of the profits of the enterprise. The mere fact of a share in profits of itself constitutes neither a partnership nor a joint adventure. There must be other facts showing that relationship to have been the intent of the parties, or such as to estop denial of it as against third parties. There is no question of third parties here, but one simply between the parties, and we think the allegations show that the contract was one of employment as a broker. "(6) That by the operation and conduct of said theater the defendants have derived and received a profit over and above all expenses of about ten thousand ($10,000) dollars per month for each and every month, and will continue in the future to realize a profit of at least ten thousand ($10,000) dollars, for each and every month of the term of their ten (10) year tenancy, under the conditions of their lease, and have since the be- In Bates on Partnership, § 43, it is said: ginning of said lease derived and received a prof- "A person who is to receive a share of the it over and above all expenses to this date the profits as compensation for services as servant, sum of three hundred thousand dollars ($300,- clerk, manager, broker, or any other agent, is 000), and for the period extending from the time not a partner. The only difference between him of the filing of this complaint to the determina- and any other employé is that his salary or wation of their aforesaid ten-year lease, the defend-ges is contingent. His connection with the firm ants will realize by the conduct of said business is inconsistent with a partnership, for it prethe further sum of at least nine hundred thousand ($900,000) dollars, a one-tenth (1/10) interest in which said profits belong to, and, when received in the future, will belong to, and of right should be paid to, this plaintiff, but that the said defendants have heretofore, although often requested by plaintiff to pay him his portion of the aforesaid profits from time to time as they have received them, his one-tenth (1/10) interest therein, have refused and wholly failed to pay him the whole or any part thereof, and have utterly repudiated their contract and agreement with plaintiff and have denied every right and claim of plaintiff in the whole or any part of such profits. That there is now actually due and owing to the plaintiff from the defendants for his one-tenth (1/10) interest in the profits already received and converted by them to their own use, cludes the rights, duties, powers, and liabilities of that relation. In most of the cases cited in the notes, the contract of the parties expressly stated that the share of the profits was for services; in others that conclusion was inferred." See, also, Gilmore on Partnership (2d Ed.) p. 18; Conyngton, Partnership Relations, $ 16. In Gross on Real Estate Brokers, § 213, it is stated: "Sometimes brokers name a fixed amount as their compensation. When this is done and agreed to by the broker's employer, it constitutes an express agreement. An express agreement, however, need not necessarily specify a fixed sum. It is an express agreement if the broker have as his compensation all in excess of a fixed sale price, or that the broker shall have a certain part of the 'profits' on a sale." The rule stated as to profits as compensation has been recognized in this state in the case of Kauffman v. Baillie, 46 Wash. 248, 89 Pac. 548, where the right of a broker to a proportion of the profits to be realized on a resale of land secured for the employer was sustained as a valid contract. money due on an express contract, and is sufficient under our statute abolishing the distinction between actions at law and in equity, so far as stating a cause of action is concerned. If in the course of the trial necessity should arise for a reference to a referee or master to take an account such course is within the power of the court in that class of cases which may have been instituted as a law action, and in In the case at bar, the facts pleaded show which matters of equitable cognizance no more than an employment to do a specific arise. Smith v. Bodine, 74 N. Y. 30; Gee thing, for which the agreed compensation. Pendas, 66 App. Div. 566, 73 N. Y. should be a certain share of the profits Supp. 247. made by the employer as a result of securing a certain stand for his business. There is no provision for a joint conduct of the business of the moving picture theater, nor for the handling of the building operated under the lease. Appellant is not disclosed as having any voice in the conduct of the affairs of respondents subsequent to the bringing about of the deal. He never obtained any interest in the business of respondents other than a right to a proportionate share of its net profits as compensation for past services rendered. The transaction clearly appears to be one of brokerage, falling under the rules applicable to agency in that class of contracts. [2] This presents the further question whether the broker would have a right of action at law to recover the compensation due under his contract, after the commission had been earned and the contract repudiated by the employer, or whether he would be relegated to an action of accounting for the purpose of establishing his proportionate share of the profits. While it is a general rule that ordinarily an agent cannot bring an action for an accounting against his principal, such an action is recognized as permissible where the relation between them is of a fiduciary character, or the transactions are so involved and complicated that the remedy at law would be inadequate. The courts have accordingly held that an agreement to pay out of profits in some cases confers a right to an account upon employés, agents, and brokers. Lindley, Partnership (8th Ed.) p. 569; Bates, Partnership, § 922; 4 Pomeroy, Equity Jurisprudence (3d Ed.) § 1421, note 3. We think appellant's complaint stated facts sufficient to constitute a cause of action. The judgment is reversed. ELLIS, C. J., and MAIN and WEBSTER, JJ., concur. PARKER, J. It seems to me that the complaint of the plaintiff would not state an existing matured cause of action but for the allegation therein that the defendants "have utterly repudiated their contract and agreement with plaintiff and have denied every right and claim of plaintiff in the whole or any part of such profits." I think the contract pleaded cannot be recovered upon until the period for the computing of the profits has terminated, which ordinarily would be the whole period of 10 years named in the contract, because until that period elapsed there would be no means of knowing that there would be any profits. Indeed, the losses of the latter portion of that period might exceed the profits of the earlier portion of the period. Manifestly, under the contract as pleaded there would then be no profits from which the plaintiff could be compensated. But the defendants may put themselves in such position as to work a termination of the contract period before the expiration of 10 years, or rather in such a position that the plaintiff may elect to so regard their action. I think, when the defendants repudiated the contract and denied all right of the plaintiff to compensation thereunder, the plaintiff then became entitled to recover compensation computed upon past profits, as if the entire period agreed upon were at an end; that is, the defendants having repudiated the contract, the plaintiff had the right to elect to recover then, or wait until the expiration of the agreed 10-year period. I do not think the plaintiff can recover upon any profits arising after he has made such election, for the theory of his recovery must, as I view his rights, be rested upon the termination of the profit period, whether such period be at the end of the agreed 10 years, or at an earlier date, by the election which he may be privileged to make because of the defendants' repudiation of the contract. I concur in the result reached by Judge But, conceding that in certain cases the recovery of a share of profits of a business is properly a matter for procedure by way of an action for an accounting, it is not necessarily so. In the present case, the pleadings show no conditions requiring that an accounting be had. The admitted allegations of the complaint are that the profits amount to a stated sum, and that appellant is entitled to 10 per cent. thereof. The evidence does not show any complication of the accounts, nor that any fiduciary relation existed between the parties, nor any other state of facts calling for equitable cognizance. Steele, lumber, from time to time, was deNORTHWESTERN LUMBER CO. v. COR- livered by the appellant. NELL et al. (No. 14103.) (Supreme Court of Washington. Dec. 27, 1917.) PRINCIPAL AND AGENT 170 (3)-UNAUTHORIZED ACTS-DUTY TO REPUDIATE "RATIFI CATION." Where one ordered material on the credit of another without authority, and the latter did not repudiate the bill for six months after learning thereof, and during such time the time for filing a lien on the work expired, the account is ratified, the ruling being that it is a duty to repudiate within a reasonable time, and, failing in this, the account is ratified where prejudice has resulted by failure to repudiate within a reasonable time. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Ratification.] Department 1. Appeal from Superior Court, Pierce County; C. M. Easterday, Judge. Action by the Northwestern Lumber Company, a corporation, against D. I. Cornell and E. C. Cornell, doing business under the firm name of Cornell Bros. Judgment for defendants, and plaintiff appeals. Reversed, with directions. Morgan & Brewer, of Hoquiam, for appellant. C. M. Riddell, of Tacoma, for respondents. MAIN, J. The purpose of this action was to recover the balance claimed to be due for lumber sold and delivered. The defendants denied liability, the cause was tried to the court without a jury, and resulted in a judgment dismissing the action. From this judgment the plaintiff appeals. The appellant's evidence, if true, shows that the original invoices, as the lumber was delivered, were mailed to Cornell Bros., at Tacoma, and the duplicates were mailed to Steele, in Hoquiam. E. C. Cornell, a member of the firm of Cornell Bros., testified that that firm did not receive the invoices. The mausoleum was to be constructed under the supervision of E. C. Cornell, representing the respondents, and for this the respondents were to receive 10 per cent. of the money expended for labor and material in the con struction thereof. From time to time, after the work was begun, Steele would mail to the respondents a statement of the amount due for labor and material, and the respondents, in turn, would mail these statements to the mausoleum company, that company would draw its check for the amount payable to the respondents, who thereupon would remit to Steele. In the construction work the respondents furnished a concrete mixer and some other equipment. During the time the work was being prosecuted E. C. Cornell visited Hoquiam and examined it three or four times. Before the mausoleum was completed the company which was constructing it transferred Steele to Bellingham, where it was constructing another mausoleum. After Steele left Hoquiam E. C. Cornell went there to superintend the completion of the mausoleum. This was during the late fall of the year 1913. The last lumber purchased was on December 4th of that year. While E. C. Cornell was at Hoquiam, superintending the completion of the work, he learned that the lumber had been charged to Cornell Bros. The facts are these: The appellant is en- He did not at that time advise the appellant gaged in the lumber business at Hoquiam. that his firm would not be responsible for the The respondents, under the firm name of lumber and repudiate the account. After the Cornell Bros., were engaged in the contract- work was completed and Cornell had returning business, with their principal office in the ed to Tacoma, some correspondence took place city of Tacoma. During the summer of the between him and the appellant, and, as late year 1914 the Northwestern Mausoleum Com- as May 24, 1914, in the correspondence, Corpany or the Mausoleum Sales Company of nell did not repudiate the account but stated Seattle was constructing a mausoleum in the that he was using every effort to have the city of Hoquiam. One W. K. Steele, an en- mausoleum company take care of it. gineer, was superintendent of the construc- or eight months after E. C. Cornell learned tion. From time to time during the three that the lumber had been charged to his or four years previous Steele had been em- firm, the account was repudiated and the ployed as an engineer by the respondents, present action begun to recover $311.69, the and in this capacity during the early part of balance due on the account. Cornell denied the year 1913 superintended certain construc- that Steele was the agent of his firm in contion work in the city of Hoquiam which the structing the mausoleum, or in purchasing respondents were doing for the appellant. the lumber. It is unnecessary here to deterWhen Steele went to Hoquiam for the pur- mine whether this denial would overcome pose of superintending the construction of the inference of agency from the other facts, the mausoleum, he visited the office of the because, assuming that Steele was not the appellant and desired to arrange to purchase agent of Cornell Bros., it does not necessarily lumber for that purpose. He stated that follow that the appellant is not entitled to reCornell Bros. were about to construct a mau- cover from the respondents. When E. C. soleum in Hoquiam, and that he desired to Cornell learned that the lumber had been purchase lumber upon their credit. This charged to his firm, it became his duty, withcredit was extended, and, upon orders from in a reasonable time, to notify the appellant Six |