Opinion of the Court-DUNBAR, J. [2 Wash. appellees brought lumber upon the lot and improved it by erecting a house into which they immediately moved, and in the spring of 1890 added to said improvements, at a cost to appellees of about $400; that appellant resided within twenty or thirty rods of said land, and could and did see the improvements erected thereon from day to day and made no objection thereto; that appellees paid and appellant received on account of said purchase price, ten dollars, in May, 1889; twenty dollars in June, 1889; and fifty dollars in February, 1890; that in February, 1890, prior to the bringing of this suit, appellees tendered appellant $310 and demanded a conveyance of the land; that appellees demanded from appellant a number of times a bond for a deed or some other security or writing as evidence of appellant's contract to convey, and appellant in response to such requests, agreed to give such bond or writing as soon as she was able to get out, she being then sick, but no bond or writing was ever given; that said demands for a bond and promise to give same occurred after the making of the agreement to convey, and when appellees were in possession of the property. Judgment for plaintiffs and defendant appeals, alleging as error that the evidence does not support the findings of the court, nor the allegations of appellees' complaint. Thompson, Edsen & Humphries, for appellant. The opinion of the court was delivered by DUNBAR, J.-We have looked into this case, and find no error substantially affecting the rights of appellant. One of the findings of the court was that the purchase price agreed upon in said oral agreement was to be the sum of $350 if the plaintiff, Christina L. Peterson, should care for and nurse defendant during a certain sickness; but, if said June, 1891.] Opinion of the Court-Dunbar, J. plaintiff, Christina L. Peterson, should not so care for and nurse said defendant, then the purchase price was to be the sum of $400. We think the court, from all the testimony, should have found that the agreed price of the lot was $350, one-third to be paid at the time the deed passed, and the balance in a reasonable time. However, we are satisfied from the testimony of appellant, especially as shown on page 42 of the record, that it was not the difference between $350 and $400 that caused her to refuse the tender, but because she had concluded not to deed appellee the land at all, for the reason alleged by her that "he did not pay it when he agreed to a year before." There is no dispute about the fact that under the contract the appellees went into immediate possession; that they commenced building a house immediately, and that they moved into the house; and that they have lived there ever since; and that appellant knew this, and never raised any objection to it. We cannot agree with the appellant that the proof shows that the improvements did not exceed $150. The appellant testified that the improvements could not be sold for more than $150; but the appellees, who put the improvements there, testified that the first improvements made were a house worth $300, and other improvements of the value of $100. The house was a basement aud three rooms, in which appellees and their four children lived until about the commencement of this action, when some further additions were made. We think the whole testimony fairly justifies the conclusion that the $10 and $20 payments were intended by the appellees as payments on the lot, and were received as such by appellant, and that the order given Wood on appellee Peterson by Mrs. Janson of $50 was intended by appellant to be placed to the Petersons' credit on the lot transaction, and was so understood by Peterson when he honored and paid the order. While there is undoubtedly conflict of testimony on nearly all the 29-2 WASH. questions of fact raised by the pleading, in the judgment of this court the material allegations of the complaint are sustained by the testimony. The judgment will be affirmed. ANDERS, C. J., and SCOTT, STILES, and HOYT, JJ., concur. [No. 247. Decided June 15, 1891.] THE EDISON ELECTRIC ILLUMINATING Co. v. MARTIN A. NEEDHAM et al. APPEALS-FAILURE TO FILE TRANSCRIPT AND BRIEF. Where appellant fails to file a transcript and to serve and file a brief as provided by law and the rules of this court, and gives no reason or excuse for such failure, the appeal will be dismissed. Appeal from Superior Court, Spokane County. Arthur & Regan, for appellees. Per Curiam: On the 18th day of August, 1890, judgment was rendered in this cause, in the court below, in favor of defendants, appellees here, for costs, and dismissing plaintiff's complaint. On the same day the plaintiff, in open court, gave notice of appeal from said judgment to the supreme court of the State of Washington, and thereupon filed a supersedeas bond, by order of the court, in the sum of $5,000. Appellees having filed in this court a certified copy of the judgment appealed from, and of the notice of appeal, move to dismiss this appeal because appellant has failed to cause a transcript to be prepared, and has failed to serve and file a brief as provided by law, and the rules of this court. Due notice of the motion was served upon appellant more than ten days previous to June, 1891.] Opinion of the Court-SCOTT, J. the date fixed for the hearing, and it appearing that the time prescribed for preparing and filing the transcript, and for serving and filing a brief, has long since expired, and that no transcript or brief has been filed, and that no reason or excuse has been given or made for failing so to do, the appeal must be dismissed at the cost of appellant, and it is so ordered. [No. 180. Decided June 17, 1891.] THE SEATTLE LAND COMPANY V. BENJAMIN F. DAY. 2 451 e38 419 REAL ESTATE BROKER-CONTRACT-COMMISSION-WRITTEN INSTRUMENT―EVIDENCE. Testimony by defendant as to the length of time a bond had to run is admissible without proof of its loss, where such evidence is not offered to prove the contents of the bond, but is given as part of a conversation with the plaintiff, and for the purpose of showing defendant's version of the contract between them for a sale of the bonded land to other parties. Where land bonded for $16,000 is placed in a real estate broker's hands for sale under contract that the holder of the bond should first make $500 out of any sale the broker might negotiate, the broker to have all profit in excess thereof, and a sale was negotiated for $18,000, which the purchaser subsequently refused to complete on the ground of defect of title, the broker is not entitled to a commission. Appeal from Superior Court, King County. The facts are fully stated in the opinion. V. H. Faben, and George D. Blake, for appellant. The opinion of the court was delivered by SCOTT, J.-Appellant brought this suit to recover $1,500 from appellee, as a commission due for finding a pur Opinion of the Court-Scott, J. [2 Wash. chaser for certain real estate. The controversy was in relation to the contract between the parties to the action. Appellant claimed that appellee listed the property in the ordinary manner with it for sale, and agreed to pay appelJant such sum as it could sell it for in excess of $16,500; that it found a purchaser ready and willing to buy the property, and pay $18,000 for it, but that upon investigation the title proved to be defective, by reason whereof the sale was prevented. Appellee disputed that the contract was as claimed by appellant, and contended that the agree ment was in the nature of a joint speculation between the parties, by the terms of which appellant was to receive nothing unless the sale was actually made. He also insisted that the title was not defective, but admitted that the party procured by appellant refused to take the property on account of what he alleged and was advised was a defect therein. Appellant claimed, further, that if the title was not defective, and if the contract was as claimed by appellee, it was his duty to have entered into a contract with the proposed purchaser at the first opportunity, thereby binding him so that he would have been compelled to take the property, and as appellee did not do so, appellant was entitled to recover. The jury found a verdict for the defendant. Appellant claims that there was no evidence to sustain this verdict, and that it was entitled to recover upon appellee's own showing. It seems that appellee had only a bond for a deed to the property, which was about to expire. This, however, was not the defect complained of. C. B. Holman, appellant's secretary, and who was acting for appellant in the premises, said in his testimony that, in making the contract, the defendant Day stated to him that he had a piece of land under bond, which he was willing to sell for $16,500 net to him, and asked him if they could procure a purchaser; that he told him he believed they could, and that thereupon Day |