Feb. 1901.]

Opinion of the Court-Dunbar, J.

People, 77 Ill. 532; State v. Cole, 39 La. An. 938; People v. Trezza, 128 N. Y. 529; McGinnis v. Commonwealth, 102 Pa. St. 66; State v. Davenport, 38 S. C. 348; State v. Smith, 49 Kan. 358; State v. Jones, 7 Ga. 422; State v. Heisserer, 83 Mo. 692; State v. Hamilton, 106 N. C. 660; Carter v. State, 4 Tex. App. 165; People v. Swift, 59 Mich. 541; Commonwealth v. Dobbins, 9 Bush, 1. And this doctrine has been applied in a number of the cases cited to appeals from motions granting a new trial. See, also, Ketchum v. Dennis, 41 Ala. 183; Wallace v. Middlebrook, 28 Conn. 464; Evans v. Adams, 12 Ga. 44;J. W. Reedy Elevator Mfg. Co. v. Pitvowsky, 35 Ill. App. 364.

The opinion of the court was delivered by

DUNBAR, J.-The respondent was indicted for perjury, was tried and convicted, but, upon the motion of his attorneys, the court granted him a new trial. From such order of the court the state appeals, and the respondent interposes a motion to dismiss on the ground that the order was not appealable. We think this motion must be sustained. At the common law an appeal would not lie from the ruling of a lower court in a criminal case on behalf of the state. It follows, then, that, if any right to appeal exists, it must be by constitution or by statute. While the constitution provides that the supreme court shall have appellate jurisdiction in all actions and proceedings, it does not undertake to confer the right of appeal in a particular case, but leaves such provisions to the discretion of the legislature, and the statute defines the determinations from which an appeal may be had. Section 6500, Bal. Code, recites the orders or judgments from which appeals may lie. The first six sub-sections of the act have reference specially to civil actions, and

Syllabus.

[24 Wash. the fact that an appeal is provided for in civil actions from an order granting a new trial and is not provided in sub-section 7, which deals with appeals in criminal cases, would seem to exclude the idea that the statute was intended to grant the right of appeal from an order granting a new trial in a criminal action under the rule announced by the maxim that the expression of one excludes the other. If there is any provision for an appeal at all, it must be found in the last part of sub-section 7, which provides that an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or in some other material error in law not affecting the acquittal of a prisoner on the merits. Plainly, this appeal does not fall within the first two propositions, nor do we think it is comprehended in the last. The granting of a new trial is not exclusively an error of law; for, at the most, it is a ruling of the court upon law and facts. The statute, then, not having provided, by express words or fair deduction, for an appeal from this order, the motion to dismiss will be sustained.

REAVIS, C. J., and FULLERTON and ANDERS, JJ., con

cur.

[No. 3761. Decided February 20, 1901.]

L. B. DIMMICK, Respondent, v. H. W. COLLINS, Appel

lant.

STATUTE OF FRAUDS PAYMENT OF ANOTHER'S DEBT AS ORIGINAL
PROMISE.

An agreement to pay the debt of another as consideration for another contract between the promisor and promisee is not within the statute of frauds.

Feb. 1901.1

Argument of Counsel.

SAME ACTION ON CONTRACT

SUFFICIENCY OF EVIDENCE.

In an action by plaintiff to recover upon defendant's promise to a third party to pay such third party's debt to plaintiff, a prima facie case sufficient to go to the jury is established by evidence showing that such third party held a lease of certain farm lands of defendant, from which he was to have two-thirds of the grain raised by him thereon; that he had agreed to share his portion of the crop with plaintiff, in consideration of the latter's labor in raising the crop; that the lease was subsequently surrendered to defendant on his agreement to pay plaintiff the value of the services performed by him towards raising the crop; and that such services performed by plaintiff were worth $223.25.

In an action by plaintiff to recover the value of his services in raising a crop of grain for a tenant of defendant, and which, it was claimed by plaintiff, but denied by defendant, the latter had agreed with the tenant to pay in consideration of a surrender of the lease, evidence of the condition of the crop at the time of the alleged contract and that it was doubtful whether it would more than pay the costs of harvesting and threshing is admissible as a fact tending to show the reasonableness and probability of defendant's entering into such a contract.

Appeal from Superior Court, Spokane County.-Hon. LEANDER H. PRATHER, Judge. Reversed.

Crow & Williams, for appellant:

Where there is a dispute between parties to litigations, as to what was said, or what was contracted, it is always competent to show the surrounding circumstances, and anything which has a bearing upon the controversy and tends to prove the reasonableness or unreasonableness of the story of either. Stephens, Digest of Evidence, art. 7; Jones, Evidence, § 138; Moore v. Davis, 49 N. H. 45 (6 Am. Rep. 460); Holmes v. Goldsmith, 147 U. S. 150 (37 L. ed. 118); Stevenson v. Stewart, 11 Pa. St. 307; 11 Am. & Eng. Enc. Law (2 ed.), 502, 507.

A. J. Laughon and Del Cary Smith, for respondent.

Opinion of the Court-MoUNT, J.

The opinion of the court was delivered by

[24 Wash.

MOUNT, J.-The respondent, plaintiff below, brought this action against appellant upon two causes of action. The first is, in substance, that one W. H. Darknell was indebted to plaintiff in the sum of $223.25; that about August 31, 1899, defendant and said Darknell made and entered into an agreement by the terms of which said Darknell assigned, transferred, and sold to defendant all his right, title, and interest in and to a certain crop of wheat then growing on premises described, in Spokane county, and as consideration therefor the defendant promised and agreed to pay the said indebtedness. The second cause is substantially as follows: That in August, 1899, defendant employed plaintiff to harvest said grain above described and agreed to pay therefor the sum of one dollar and a half per acre; that under said agreement plaintiff harvested fifty-five acres of grain; a demand, and refusal to pay. Defendant answered the said first cause of action and denied the allegations thereof, and for further answer alleged that if the contract alleged was ever made the same was wholly without consideration and was never evidenced by any written memorandum. Answering the second cause of action, defendant, after denying the allegations, alleged a contract to cut thirty acres of said grain at one dollar and a half per acre, and a tender of the amount due.

The cause came on for trial before a jury, and a verdict was given by the jury for the amount prayed for in the complaint. At the close of plaintiff's case, the defendant challenged the sufficiency of the evidence and moved the court to direct a verdict for the defendant upon the first cause of action. This motion was by the court denied, and appellant assigns this ruling of the court as error. Under the rulings of this court in Don Yook v.

Washington Mill Co., 16 Wash. 459 (47 Pac. 964), and in Gilmore v. Skookum Box Factory, 20 Wash. 703 (56 Pac. 934), the complaint stated a cause of action, and the contract was not within the statute of frauds. The other question to be considered upon this motion is whether there was any evidence to support the complaint. Witness Darknell testified substantially as follows:

"I had a lease on the N. E. quarter of section 1, township 21 north, range 45 E., W. M., which property was owned by defendant. I surrendered the lease which I held on said land to Mr. Collins. By my lease with Mr. Collins I was to receive two-thirds of the grain raised on the farm, and I had a contract with the plaintiff, Mr. Dimmick, that he should perform work in raising the said crop and should receive one-half of my two-thirds of the crop. He did work under this arrangement and had performed services of the value of $223.25. This work consisted in plowing the ground and seeding the same. Mr. Collins agreed to pay the plaintiff the amount of $223 which was due from me, and also to pay the note," etc.

This evidence was corroborated by the plaintiff and one other witness. It was certainly competent under the pleadings and makes a prima facie case. The court committed

no error in denying the motion.

Appellant, at the trial, both by cross-examination of the witnesses of the defendant and by his own evidence, offered to prove the character, condition, and value of the crop at the time the contract is alleged to have been made. Objections to questions having this object in view were sustained by the court. While the defendant was on the stand as a witness in his own behalf, and after he had denied the making of the contract in which he was alleged to have assumed the said indebtedness of $223.25, and after he had denied that he had agreed to pay any part

6-24 WASH.