that there was no evidence tending to show that the plaintiff had been employed by a contract in writing as broker or agent to sell the property for compensation or a commission. Then, after other evidence of the same character as the last was offered and excluded, the plaintiff rested his case.

The defendant, without offering any evidence, did likewise, and thereupon the judgment, from which plaintiff appeals, was rendered against him.

The exclusion of the memorandum presents the gist of the controversy. The appellant contends that all that a writing employing a broker or agent to purchase or sell real estate for compensation or a commission need show is, the fact of employment; and that it is not required to express that such employment is for compensation or a commission. While, on the other hand, the respondent contends that, to be valid, it must disclose that the employment is for compensation or a commission.

By section 1624 of the Civil Code it is provided: “The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or by his agent: . . . 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission."

This section was applied in the following cases: McCarthy v. Loupe, 62 Cal. 299; Myres v. Surryhne, 67 Cal. 657; and Zeimer v. Antisell, 75 Cal. 509. In each of those cases it was held that no recovery by a broker or agent for effecting a sale of real estate could be had, unless he was employed, by an agreement in writing, for that purpose. But none of them involved the precise point in question here.

The sixth clause was added to the above section of the code in 1878; prior to which time, it seems that the absence of an express contract might have been supplied

LXXXVI. CAL.-41

by proof of usage regulating transactions like the one here. (McCarthy v. Loupe, 62 Cal. 299.) The change thus made was to prevent the assertion of false claims for compensation by brokers and agents against owners of real estate, which could be done with facility under the former rule.

Thus we perceive that the clause is remedial in its object, and if its meaning is doubtful, as suggested by this controversy, its words will have to be construed so as to suppress the mischief adverted to, and advance the remedy.

The agreement referred to in the clause, it is true, is one defining the right of the agent to effect a purchase or sale of realty, and the liability of the principal to recompense him for his services. But it is to be observed that the chief element in it is the employment. This must necessarily be so, because, as appears by the cases above cited, without proof, in writing, of the employment, no recovery can be had. If, then, no recovery can be had without such proof of the employment, it seems to us that the object of the clause will be fully subserved by holding that, in an agreement like the one in question, the expressing of the fact of employment, without stating that it is for compensation, will suffice.

If there were any doubt of this, it would be resolved by reading in connection with the above clause section 1614 of the same code, which bears upon the same subject-matter, and which is as follows: "A written instrument is presumptive evidence of a consideration."

This provision is general, and applies to all contracts where a different rule is not expressly prescribed. And we think that had the legislature intended that contracts like the one in question should state a consideration for the services to be rendered by the broker or agent, it would have expressly said so.

From this it follows that the memorandum of agreement offered in evidence by the appellant was errone

ously excluded; also, the evidence tending to prove that he had rendered services under the contract of employment. (Waterman v. Boltinghouse, 82 Cal. 659; Zeimer v. Antisell, 75 Cal. 509.)

And as the written contract of employment raised a presumption that the defendant, as principal, had agreed to pay the plaintiff, as his agent, a consideration for services rendered under that contract, and as no certain amount appeared to have been stipulated for, the evidence tending to show the reasonable value of such services should have been admitted.

We therefore advise that the judgment be reversed, and the cause remanded for a new trial.

HAYNE, C., and VANCLIEF, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for a new trial.

Hearing in Bank denied.

[No. 13824. In Bank.-December 10, 1890.]

EMMA BUCKLEY ET AL., RESPONDENTS, v. THEODORE ALTHORF, APPELLANT.

APPEAL-NEW TRIAL-MOTION ON MINUTES OF COURT-NOTICE OF INTENTION-SPECIFICATIONS.-Where a motion for a new trial is submitted on the minutes of the court, and no specification of insufficiency of the evidence or assignment of errors is given in the notice of the motion, no subsequent statement of the case is authorized, and if made and settled, will not be considered on appeal.

ID.-STATEMENT NOT FILED IN TIME.-A statement on motion for a new trial, served six days after the expiration of the time allowed by law and by all extensions given, will not be considered on appeal.

ID. DISMISSAL-FAILURE TO FILE TRANSCRIPT-INSUFFICIENT RECORD-REINSTATEMENT.-Where no transcript is filed within forty days after the perfecting of the appeal, and there is no statement or bill of exceptions which can be used upon the appeal, settled or pending settlement, the appeal is properly dismissed, and will not be reinstated, if no sufficient cause is shown why the order of dismissal should be vacated.

MOTION to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a motion for new trial.

The facts are stated in the opinion of the court.

Hassett & Tevlin, for Appellant.

Charles J. Heggerty, and Gunnison & Booth, for Respondents.

The COURT.-On the 28th of July, 1890, an order was made and entered in this cause, dismissing the appeal, and, under the rule of the court, remittitur was issued forthwith. Subsequently, upon an ex parte showing, which seemed to be sufficient, the remittitur was recalled, and the appellant moved the court to vacate or modify the order dismissing the appeal, on the ground that the same had been improvidently made, through a misconception of the facts and the records in the cause. The reasons for making the order were not then fully stated in the opinion, nor was it entirely correct in its statement of the rule of practice under the codes. The reasons then given will therefore be stricken out, but the motion to vacate the order dismissing the appeal or to modify the same must be denied.

The action was for forcible entry and detainer. Judg ment for plaintiff, March 5, 1890. On the 8th of March, notice of intention to move for a new trial, to be heard on the minutes of the court, was given. The motion came on regularly to be heard on the 11th of March, and was then overruled. On the same day, notice of appeal was given, and undertaking on appeal filed March 13th. On the 21st of March, appellant procured from the judge of the court below an order granting to defendant "twenty days' further time from date hereof in which to prepare and serve his proposed statement on appeal herein." On the tenth day of April, he procured

from the judge another order, giving him "five days from the date hereof in which to prepare and serve his proposed statement on appeal herein." This time expired April 15th. In law and in fact he was not entitled to have settled in the case any "statement on appeal." His motion for new trial having been submitted on the minutes of the court, he could only bring to this court, on appeal, matters other than those appearing in the judgment roll by bill of exceptions, or a "statement of the case, subsequently prepared." (Code Civ. Proc., sec. 661.) And he was entitled to such a statement only upon having made a motion on the minutes of the court, upon notice duly given as provided in subdivision 4 of section 659 of the Code of Civil Procedure. That subdivision provides that a notice of motion to be heard on the minutes of the court must specify the particulars wherein the evidence is claimed to have been sufficient, and the errors of law relied upon. It does not appear that any such specification was given, or assignment made, in the notice given in this case. Even when the notice is so given, the "statement of the case, subsequently made," must be confined to the errors and particulars specified in the notice. As none were so specified, no subsequent statement of the case was required or authorized. The extensions of time were therefore secured to do something which the law did not authorize to be done, or which could not be used on appeal if done, whether that something was to prepare and serve "proposed statement on appeal," or "statement of the case, subsequently made." The extended time expired on April 15th. The proposed statement was not served until the twenty-first day of April,-six days after the expiration of the time allowed by law and by all extensions given. So that on this ground, also, the statement was one which the court was not called upon to settle, and which could not be used upon the appeal. No transcript was filed within. forty days after the perfecting of the appeal, and there