Mr. Michael succeeded in getting some signatures, the contract was turned over to Mr. Shelton. He was to get signers and see Mike Lynch.

"It was supposed there should be twelve at least who would sign."

The defendant D. B. Michael testified: "I had an understanding with Mr. Shelton relative to getting signatures to it. We had a contract drawn up and I signed it first and was to take it and get all the signatures I could in my neighborhood, and he was to take it and get the rest down the coast. I secured the signatures I agreed to get. Mr. Shelton and I had a conversation relative to the number of people who should sign the contract before it would become binding. There were supposed to be twelve signatures. I said to Mr. Shelton that if we could not get over one-half dozen, or something like that, I didn't want it, because I could not afford to pay that much for the road. After I procured the signatures I agreed to procure, I sent the contract to Mr. Shelton."

The defendant Ben Bond testified: "I told him [plaintiff] that I would not put my name to the contract unless it was understood that all of twelve signers should be on the contract. That was agreeable to Mr. Shelton. Mr. Michael had the contract when I signed it, and Mr. Shelton was not present. There are twelve settlers in that country who would be benefited by the road, and I thought they probably all would sign it."

The above is the substance of all the evidence bearing upon this feature of the case.

(3) Several instructions were asked by the defendants as to this phase of the case, but they were all refused; and this refusal is assigned as reversible error.

The instructions were all similar to instruction VIII, and a quotation of it will be sufficient. It is as follows:

"Gentlemen, a delivery on condition is not a complete delivery until the condition is fulfilled. If you find in this case that the writing in evidence was delivered by those who signed it for the purpose of having Mr. Shelton secure twelve signatures thereto, and that it was the intention of the parties that it was not to become binding until twelve signatures were secured, then I charge you, there was no delivery and you must find for the defendants."

It is not reversible error to refuse a requested instruction that is not applicable to the evidence or that presents an erroneous theory of the case.

Referring back to the testimony, it will be observed that the witness McFaul is not one of the defendants. His testimony is not to the effect that there would be no contract unless so many as twelve signed it. His language is indefinite. "It was supposed there would be about twelve who would sign."

The defendant Michael used no language as a witness from which the conclusion can be drawn that he signed it upon the condition that it was to be inoperative unless twelve signatures were obtained to it.

The defendant Bond used language more definite and certain.

No one of the other seven defendants gave any testimony of any understanding or agreement as to the number of signatures it was expected there would be to the contract, or that any of them ever heard of the matter before the trial.

The instruction requested embraced all of the defendants. It is apparent from the evidence above referred to that the instruction was not applicable to it and was too broad. There was no evidence (as the instruction assumed) that any one of eight of the defendants signed the paper for the purpose of having Mr. Shelton secure twelve signatures to it, and no evidence that it was the intention of said eight defendants, or any of them, that the contract was not to become binding until twelve had signed it.

These eight defendants signed a joint and several contract without any limitation or condition, and it would have been error for the court to have instructed the jury as to them and their liability in the language of the refused instruction.

Whether such an instruction directed to the defendant Bond alone should have been given, we need not inquire, as no such instruction was asked.

In the notes to Benton Co. Savings Bank v. Boddicker, [105 Iowa, 548, 67 Am. St. Rep. 310, 75 N. W. 632], 45 L. R. A. 321, is found quite a full collection of decisions upon the signing of contracts upon an understanding that they were not to be operative until signed by others. We make the following quotation therefrom: "One who signs a joint and several bond, cannot excuse himself from liability upon the ground

that it appears on the face of the bond that it was intended to be signed by others who did not sign, unless he declares at the time that he would not be bound unless such signatures were obtained."

"The requirement that others shall sign must amount to a condition that the bond shall not take effect without its performance as distinguished from a mere expectation that others shall sign." (See, also, City of Los Angeles v. Millus, 59 Cal. 444.)

(4) There was no error in admitting the contract sued upon in evidence. The alleged error is predicated upon the assump-. tion that the complaint alleges a joint and several contract, and that the contract introduced was not such.

The complaint nowhere attempts to designate the contract as either joint or several or joint and several.

We have already declared that in our opinion the contract was joint and several.

It is claimed that as the figures $25 appear after the signature of the defendant Stevens and the words "for the swamped road" after the signatures of defendants Bond and Moller, the contract shows they had only assumed a limited liability, Stevens only for the sum of $25 and the other two named defendants only for money to become due on the part of the road designated as "swamped."

In the body of the contract, those defendants, without limitation, promised to pay for the construction of the road, and the words following their signatures are too indefinite to limit their liability. As counsel for respondent suggests, they may have been intended as mere memoranda to be used in some settlement to be made between the defendants.

The case is readily distinguishable from Moss v. Wilson, 40 Cal. 159, 162, relied upon by appellant. In that case the contract provided: "The undersigned settlers . . . will pay the sum annexed to their names." No such provision is found in this contract. In that case it does not appear that the signers had a joint interest in the act to be accomplished. The record in this case abundantly shows that all the signers were decidedly interested in having the road constructed.

In the brief of appellant it is stated: "There is a variance in that a different contract was proved than the one alleged. The plaintiff pleaded a contract to build a road and proved a contract to build a road and bridges. The plaintiff testified

that he did not build any bridges and that it was understood at the time that he was not to." This is followed by the statement that the plaintiff did not prove performance of the contract he introduced in evidence.

No point is made in counsel's brief that the court erred in admitting proof that it was understood that plaintiff was not to build the bridges. He could not well make such claim in view of the fact that most of the evidence along this line was brought out by him upon cross-examination of witnesses.

Waiving the question whether the contract as to building road and as to building bridges is severable, we think appellant did not raise the point now contended for with sufficient seriousness in the trial court to permit him to ask for a decision upon it here.

The answer set up two separate defenses, but in neither did it allege the contract was different from the one stated in the complaint.

When the contract was offered in evidence, counsel objected on the ground of variance, in that the complaint alleged a joint and several contract, and the contract offered was joint, but said nothing about a variance because of the provision for building bridges. No motion was made for a nonsuit upon the ground of variance.

No instruction was requested to the effect that plaintiff could not recover because he had not built the bridges. Neither court nor counsel were in any way apprised that this point was relied upon or would be. If timely notice had been given thereof in some of the ways suggested, perhaps plaintiff would have asked leave to amend his complaint to show why he had not built the bridges.

An examination of the record fails to disclose that the trial court ruled upon the point or was asked to except by objections to two questions near the end of the trial, and counsel in his brief does not assign these rulings as error, and could not well do so in view of the condition of the record at the time the objections were made. Besides, the evidence that was admitted without objection makes it clear that it was never intended the plaintiff should build the bridges, or if such intent existed at the time the contract was written, it was waived and abandoned by mutual consent.

The plaintiff testified: "I did not build the bridges. I had nothing to do with the bridges. It was the understand

ing that Michael was to put them in. All the parties said I was not to build the bridges. At the time the contract was signed, it was understood I was not to build the bridges."

The witness McFaul testified: "Michael said he would build them [the bridges] on the same day the contract was drawn up."

The defendant Michael testified: "At the time the contract was drawn, I said we should have some arrangement made about these bridges, and said at the time I would build the bridges for three hundred dollars if no one else wants to. I heard Mr. Shelton say that he would not have anything to do with the bridges. I have heard these others say they have heard him say so."

It was not error to admit evidence to prove that money was not deposited in bank as provided in the contract.

The judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 1775. First Appellate District.-August 31, 1916.]

SAMUEL JENNINGS, Appellant, v. F. R. JORDAN, Respondent.

REAL ESTATE BROKER-EXCHANGE OF PROPERTIES-FAILURE OF CONSUMMATION-COMMISSIONS NOT EARNED.-Under the terms of a contract for an exchange of properties, wherein each party agreed to convey title free of encumbrances and to pay the broker who procured the contract to be executed a commission, the commission is not earned where the exchange was not consummated by reason of the inability of one of the parties to convey title to a portion of his property, and the subsequent mutual abandonment of the contract.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. Everett J. Brown, Judge.

The facts are stated in the opinion of the court.

Dunn, White & Aiken, for Appellant.

Fitzgerald, Abbott & Beardsley, for Respondent.