ployed by the Gearhart Park Company. The, of O. W. Taylor," were written on the instruTitle & Trust Company, a corporation, held ment. the property in trust for the Gearhart Park Company, and the former executed contracts and deeds for the benefit of the latter. On

Soon after receiving the Kemmerer letter HARRIS, J. (after stating the facts as the Title & Trust Company was instructed above). Apparently a printed or typewritten by O. W. Taylor, the president and general form had been prepared to be used by salesmanager of the Gearhart Park Company, to men, and the form seems to have been draftcancel the "contract" with Kemmerer, and ed on the assumption that in most cases a accordingly the words, "Cancelled, per letter | deposit of $150 would be paid with each ap

liquidated damages, the defendant is entitled to the benefit of the stipulation for a forfeiture, and can retain the money paid to it, unless it can be said that the defendant has lost such benefit by failing properly to exercise its right. Snider v. Lehnherr, 5 Or. 386, 390; Holbrook v. Investment Co., 30 Or. 259, 265, 47 Pac. 920; Graham v. Merchant, 43 Or. 294, 304, 72 Pac. 1088; Mitchell v. Hughes, SO Or. 574, 588, 157 Pac. 965.

plication. However, in the instant case the, involves a penalty as distinguished from parties probably adapted themselves to the financial situation of the plaintiff, and instead of requiring the payment of the $150 in a lump sum he was permitted to pay this amount as well as the remainder of the price in monthly $10 installments. An examination of the writing discloses that $750 is the purchase price. Every word which refers to the subject at all plainly contemplates the issuance of a contract providing for the payment of the final $600 in monthly installments of $10; and also the language which was "inserted" in the instrument by the parties permits the plaintiff to make monthly $10 payments "until first payment of $150 is paid." It is obvious, too, that it cannot be said that the "deposit" mentioned at the end of the instrument meant more than the "first payment of $150."

[1] The plaintiff contends that the writing does not meet the requirements of the statute of frauds, and that, "therefore, appellant is entitled to recover money paid thereunder." While it has been decided in Davis v. Brigham, 56 Or. 41, 47, 107 Pac. 961, Ann. Cas. 1912B, 1340, that the agreement need only be signed by the party charged, yet, waiving any conclusion that might be deduced from that precedent, there was nevertheless sufficient part performance to enable the plaintiff to compel specific performance. Johnson v. Puget Mill Co., 28 Wash. 515, 68 Pac. 867. Moreover, while it is true that the writing is styled an "application," it is also true that this "application" was accepted by the defendant; for the Title & Trust Company not only accepted 10 several payments in addition to the first $10 payment, but it also permitted the plaintiff to enter into possession of the lot and cut wood, and, as we infer from the record, build a house upon the property.

[3-5] The language found in the forfeiture provision necessarily determines the right of forfeiture. A stipulation providing for the forfeiture of payments may be self-executing: Maffett v. Oregon & California R. Co., 46 Or. 443 454, 80 Pac. 489; Gray v. Pelton, 67 Or. 239, 243, 135 Pac. 755; Potter Realty Co. v. Derby, 75 Or. 563, 572, 147 Pac. 548; T. B. Potter Realty Co. v. Breitling, 79 Or. 293, 301, 155 Pac. 179; or the stipulation may do no more than merely to confer an option upon the vendor, and in that event a default in paying an installment does not of itself work a forfeiture, but there must be a declaration of forfeiture or some equivalent act or conduct. Graham v. Merchant, 43 Or. 294, 304, 72 Pac. 1088; Higinbotham v. Frock, 48 Or. 129, 131, 83 Pac. 536, 120 Am. St. Rep. 796; 13 C. J. 609. A provision for the forfeiture of payments will not be construed to be selfexecuting unless unequivocal language is used showing plainly and clearly that such was the intention of the parties. 39 Cyc. 1384. The instrument involved in the instant case does not contain a self-executing forfeiture clause, nor do we understand that the defendant claims that a default in the payment of a monthly installment ipso facto works a forfeiture.

In the writing now being examined it is said that "time is the essence of this agreement." While it is true that a blank space appears before the word "days," it is never

[2] The plaintiff earnestly insists that there was a mutual recission of the agree-theless obvious that the parties understood ment, and this contention proceeds upon the that Kemmerer was to make the "first paytheory that the abandonment by the plaintiff ment of $150" in monthly installments of $10, was acquiesced in by the defendant, and and that they intended that time was to be hence resulted in a mutual rescission. If the of the essence of the agreement to pay such agreement was mutually rescinded, the plainmonthly installments. As already stated, tiff is of course entitled to maintain this ac- the word "deposit" manifestly includes no tion. Maffett v. Oregon & California Railmore than the "first payment of $150." It way Co., 46 Or. 443, 457, 80 Pac. 489. But it must be noted that the writing does not promust be remembered, however, that as point-vide for the forfeiture of any moneys except ed out in Stennick v. J. K. Lumber Co., 85 Or. 444, 478, 161 Pac. 97, 107, "declaring a forfeiture for breach of the condi

tions of a contract is not rescission of the contract. It puts an end to the contract and extinguishes it in pursuance to its terms just as performance extinguishes it. The act of taking possession under a forfeiture clause is not an act of rescission or in avoidance of the contract, but the assertion of a right growing out of it.' 13 C. J. 608.

The parties had a right to insert the forfeiture clause in the writing, and, since the plaintiff does not claim that the stipulation

the "deposit"; and it must also be remembered that the writing contemplates that when the "first payment of $150" is made a contract is to be issued in lieu of the "application receipt," and the remaining $600 of the purchase price is to be paid in monthly installments "in accordance with the terms" of the contract to be issued. The record is silent as to the terms of the contract "to be issued." In other words, the purchase price of $750 is payable in part in accordance with the "application receipt," and in part in accordance

with the terms of a contract to be issued. | W. SS: Dunlap v. Green, 60 Fed. 242, 8 C. C. The first $150 is payable according to the A. 600; 39 Cyc. 1384..

terms of the "receipt," and the final $600 in accordance with the contract to be issued. Although the final sum of $600 was to be paid monthly, yet it was to be paid in accordance with the terms, not of the application receipt, but of a contract not yet issued; and although the "receipt" states that the JOYCE-PRUITT CO. v. DEXTER STATE final $600 is payable in $10 monthly installments, nevertheless the duty to commence PECOS VALLEY LUMBER CO. v. SAME such payments does not arise until the payment of the first $150 and the issuance of the contract.

owing it. This amount the bank placed to had paid without showing he had authority to their credit, and honored the check.

Either immediately prior to the sale, or after the sale, the bank purchased certain claims against Nelson Bros. At the sale, so the representative of the bank testified, certain parties purchased property belonging to Nelson Bros. and set off the purchase price with claims which they held against Nelson Bros. The bank also paid out certain moneys on mortgages and judgments against Nelson Bros. It asked that it be allowed an offset on the claims which it had purchased and held against Nelson Bros. and the moneys paid out on such judgments, mortgages, etc. The trial court held that the bank was not entitled to the offsets and credits claimed, and gave judgment for the appellees. To review such judgments the appeals are prose

cuted.

pay them.
It is there said: 'As long as the
and no longer, he is protected. It was the duty
agent acts within the scope of his authority,
of Watson to collect and pay over the funds as
they came into his hands. It was for the com-
pany to direct the application of the money,
when in the treasury or under their control,
to the discharge of their debts, the repair of
the road, or whatever purposes they might sup-
pose most beneficial to the corporation. This
assumption of power by their agent and a mis-
they have been prevented from doing by an
application of the funds of the company. If
such a breach of trust should be permitted, it
would, in practice, lead to great abuses, by in-
most disastrous, and of the most secret and
troducing a scene of speculation and fraud the
dangerous nature.'

999

The trial court evidently refused to allow the bank credit for the money paid out by it on. the judgment and mortgage on the theory that it had no right to make the payments without specific authority of its principal, and further because the bank failed to show that these liens were legal and valid. It made no attempt to show this, going no further than to show that it had made the payments on a mortgage and a judgment. Nor did it attempt to show that that the offsets which it had allowed purchasers of property at the sale were valid and legal debts owing by Nelson Bros.

Finding no error in the proceedings, the judgments in each of the causes will be affirmed; and it is so ordered.

HANNA, C. J., and PARKER, J., concur.

On Motion for Rehearing.

There is no contention as to the money paid the bank on the note owing by Nelson Bros., secured by the bill of sale. This was paid, as stated, by Nelson Bros.' check. The question is as to the right of the bank to an offset on the claims purchased by it, and its claimed credits for the moneys paid out on the mortgage, judgments, etc. Appellant contends that, under the agreement between the bank and Nelson Bros., there was created simply the relation of debtor and creditor; hence the bank had a right to purchase claims against Nelson Bros. and set off such claims against the demand of Nelson Bros. If appellant is correct in this contention, undoubtedly the bank would have the rights claimed for it. But here the bank was the agent of ROBERTS, J. Counsel for appellant has Nelson Bros., and by virtue of such agency filed a motion for rehearing, supported by an collected the money in question. An agent, acrimonious brief, in which he asserts that who collects money belonging to his princi- the doctrine of law announced by the court pal, has no right to set off against it an an- is preposterous, and that the court failed to tecedent debt or claim owing to him by the read the record. The burden of his comprincipal, without first showing that the plaint now seems to be that the court commitprincipal has agreed that he might so apply ted a grievous error in not giving the bank it. Mechem on Agency (2d Ed.) § 1349. In credit for $107.16, which it alleged that it the case of Tagg v. Bowman, 99 Pa. 376, had paid to Martin and Sweeney, alleged to the court said: have held a chattel mortgage on four head of horses. He now asserts that the evidence shows that Nelson Bros. authorized this payment, and further that the mortgage was valid and binding.

"An agent cannot avail himself of an advantage given by his agency to apply it to his own benefit, to the injury of his principal."

In the case of Tagg v. Bowman, 108 Pa. 273, 56 Am. Rep. 204, the court said:

"The receipt of money by one person from another, to be applied to a specific purpose, implies an agreement on the part of the former not to apply it to any other use, and of course not to his own by pleading a set-off. Smuller V. Union Canal Company, 1 Wr. [37 Pa.] 68: Bank v. Macalester, 9 Barr [Pa.] 475; Ardesco Oil Co. v. North American Oil & Mining Co., 16 P. F. S. [66 Pa.] 375, 380. In Simpson v. Pinkerton, 10 W. N. C. 423, we held that an attorney at law or in fact employed to collect a claim, when he has received the money, has no right to set off an antecedent debt or claim of his own against his constituent, without first showing that the latter agreed he might retain his demand out of the money. It was also ruled, in Middletown & Harrisburg Turnpike Road v. Watson, 1 Rawle [Pa.] 330, that an agent of the company, who had received money to its use, could not in a suit against

First, as to the accusation made by counsel that the court failed to read the record: The record was read with great care by the writer of the former opinion. In fact it was necessary to read the record in full in order to arrive at any intelligent understanding as to the facts in the case. Appellant's assignments of error were as follows:

"(1) The court erred in rendering judgment against the appellant upon its answer filed herein.

"(2) The court erred in rendering judgment against the appellant in favor of said appellees. "(3) The court erred in rendering judgment against the garnishee herein, for the reason that said judgment is not supported by the evidence.

"(4) That said judgment rendered herein is contrary to law and not supported by the evi

Under the rule announced by this court in ¦ nishment, and was not questioned either by the case of Farmers' Land & Development the parties or the court below, and that the Co. v. Rayado Land & Irrigation Co., 18 N. M. 1, 133 Pac. 104, the court might well have declined to go into the merits of the case; but, as appellee had raised no question as to the sufficiency of the assignments of error, the court kindly refrained from noticing the deficiency of its own motion, and read the record in connection with appellant's brief, in order to enable it to determine the merits of the controversy.

It is well to state that, in the argument advanced by appellant in support of his claim that the cause should be reversed, the only language that might be construed as advancing the proposition which he now urges in his motion for rehearing is the following: "Our contention is we did not owe the judgment debtor, except a small amount, which has been taken care of in the judgment, and that we should be allowed to set off the amounts as set out in this brief and shown by the evidence."

In his statement of the facts in the case the only reference to the matter, other than the itemized list of the claims, is as follows:

"The testimony is undisputed that the $107 paid by Martin and Sweeney was by virtue of an existing chattel mortgage and at the express wish of Nelson Bros., given prior to said

sale."

bank was given credit for this amount. If this is true, appellant has no ground for complaint, because we simply affirmed the judg ment of the trial court. From appellant's brief we took it that he was complaining of a failure to allow credit for money paid on a judgment. If we were in error in assuming that the appellant was not given credit for money paid on the judgment, such error was occasioned, not by a failure to read the record, but by a lack of comprehension of the brief of appellant. After carefully going over the record again, and re-reading appellant's original brief, we see no reason to depart from the former opinion, further than to say that the judgment referred to was paid by the bank, and that the bank received credit for the same in the trial of the case below.

For these reasons, the motion for rehear ing will be denied; and it is so ordered.

Rehearing Denied Nov. 27, 1918.)

(Syllabus by the Court.)

1. CRIMINAL LAW

594(3)-DISCRETION OF TRIAL COURT-DENIAL OF CONTINUANCE. Under facts stated, there was no abuse of discretion in denying motion for a continuance. 2. CRIMINAL LAW 369(8) RELATION OF PARTIES-CORROBORATIVE EVIDENCE.

viction.

Appellant sets out in his brief on the motion for rehearing excerpts from the testimony which he claims show that Nelson Bros. authorized the bank to pay the $107.16 on the mortgage. The cashier of the bank was on the stand, and he was asked, "Upon whose orders did you pay this $107.16?” His answer was, "That is hard to state; of criminal intercourse between the accused and Evidence tending to show more than one act partly on Nelson's, and partly on my own." the prosecutrix is admissible to show the relaThe witness further testified that the mort- tion and familiarity of the parties and as corgage was a valid and subsisting lien upon roborative of the prosecutrix's testimony conthe horses, but did not produce the mort-cerning the particular act relied upon for a congage, nor did he testify as to the amount called for by the same. The same witness later, however, testified that Nelson Bros. had asked them to place the proceeds of the sale to their credit, less the amount owing the bank under the bill of sale, and that Nelson Bros. themselves be permitted to check out the money and pay the various claims, and that Nelson Bros. never did consent for the cashier of the bank to pay the claims out of the moneys derived from the proceeds of the sale.

The trial court, în view of the equivocal statement that Nelson Bros. had "partly" authorized them to apply the money on the mortgage, and the unequivocal statement to the effect that they had refused to authorize them to pay out any of the money, evidently elected to believe the latter, and this court is not prepared to say that the trial court was in error in so doing.

3. RAPE

ISSUE.

54(1)-INSTRUCTION-IMMATERIAL

As no corroboration of prosecutrix is necessary to uphold conviction for rape (State v. Ellison, 19 N. M. 428, 144 Pac. 10), a requested instruction on the subject of corroboration, contrary to the rule, is properly refused. 4. CRIMINAL LAW 1056(1) — APPEAL-EX

CEPTION.

instruction, it cannot be considered on appeal. Where no exception was saved to a given 5. RAPE 57(1)—QUESTION FOR JURY-CON

SENT.

Whether prosecutrix was under age of consent, or not, is a question for the jury. 6. CRIMINAL LAW 1159(3)—APPEAL-CON

VICTION.

Where verdict is supported by substantial evidence, same will not be disturbed on appeal.

(Additional Syllabus by Editorial Staff.) 7. CRIMINAL LAW 519(1) VOLUNTARY CONFESSION-ADMISSIBILITY.

Where defendant, believing that prosecutrix had told of his relations with her, put himself under protection of third person and admitted to such person that he had slept with prosecutrix, the confession was purely voluntary and

Counsel for appellant says that the judgment referred to in the former opinion was a judgment directed against the bank in gar-admissible.