for the sum or price of $11,700.00 net; and I agree to pay you no per cent as a commission on said sale when made. I further agree to furnish a complete abstract of title to date of transfer. This authorization to remain in full force and effect for thirty days, after which notice must be given in writing to terminate this contract.

"Witness:

"(Signed) SADIE B. CALKINS. (Signed) W. C. DANIEL."

At the time of the execution of the foregoing writing the plaintiff testifies, and the court finds, that an oral agreement was made between the parties to the effect that in the event of his success in securing a purchaser for the premises, the plaintiff was to receive as his compensation a sum equal to the difference between the net price specified in said writing and such price as the property should be sold for. In the meantime the plaintiff corresponded by telegrams and letters with Mr. Deckman, who was at the time in the east, but who later and during the life of the plaintiff's written contract came to California, re-examined the property, and finally purchased it directly from the owner for the sum of twelve thousand dollars. After the consummation of such sale the plaintiff demanded as his commission a sum equal to the difference between the amount named in the written authorization as the net sum to be received by the owner and the sum actually paid by the purchaser of the property, to wit, the sum of three hundred dollars.

The trial court rendered judgment in plaintiff's favor for said sum, and from said judgment and from the order denying a new trial, the defendants prosecute this appeal.

The first contention of the defendants is that the evidence is insufficient to sustain the finding that the plaintiff procured Deckman as a purchaser of the property. In respect to this issue there is a substantial conflict in the evidence, and this being so, the finding of the trial court will not be disturbed.

The next and chief contention of the appellants is that the court erred in permitting the plaintiff to introduce evidence of the oral agreement between the parties to the effect that the plaintiff was to receive all over the net sum stated in the writing as the purchase price of the property. In making this contention it is apparently conceded by the appellants that when an agent's authorization is written, the amount of

his compensation in the event of a sale may be agreed upon orally. This concession is doubtless made in the light of the authorities sustaining this view. (Toomy v. Dunphy, 86 Cal. 639, [25 Pac. 130]; Kennedy v. Merickel, 8 Cal. App. 381, [97 Pac. 81]; Baird v. Loescher, 9 Cal. App. 65, [98 Pac. 49]; Naylor v. Adams, 15 Cal. App. 354, [114 Pac. 997].) The appellants, however, insist that the oral agreement between the parties as to the sum to be received or retained as the agent's compensation is void, for the reason that it undertakes to vary the terms of a written instrument by parol, and that the ruling of the trial court in admitting evidence of such oral agreement was error. The clause in the writing which it is argued is varied and in fact abrogated by the oral agreement, according to the appellants' contention, reads as follows: "I agree to pay you no per cent as a commission on the amount of said sale when made." This clause standing alone might support the appellants' contention; but it is to be interpreted in connection with the entire writing, with the nature and object of the contract, and with the circumstances attending its creation. tracts between real estate agents and owners of real estate by which the former are given authority to engage in activities having for their object the sale of the latter's property are entered into for the mutual material benefit of the parties to such contracts, and are to be so construed as not to defeat these objects when such construction is reasonably deducible from their terms. The foregoing clause in the written authorization of the plaintiff is to be read in the light of the preceding clause in such writing with which it is connected in the conjunctive, and which designates the net amount which the owner is to receive upon the sale of the property; and it is upon said "amount of said sale" that "no percentage as a commission" is to be paid. The use of the term "net" and specifying the amount which the owner is to receive carries the plain implication that the selling price of the property is to be some larger sum, the excess of which is undisposed of by the terms of the written agreement. This being so, the oral agreement of the parties to the effect that the agent should retain such extra sum as the compensation for his services in the premises does not vary the terms of the writing, but only amplifies it so as to effectuate the mutual material interests of the parties in entering

into it. The court, therefore, did not err in admitting the evidence of such oral agreement, nor in its finding predicated upon such evidence.

The final contention of the appellants is that the plaintiff never in fact produced a purchaser ready and able and willing to purchase the property in question for the price at which the agent offered it to such purchaser. This argument is predicated upon the evidence in the case showing that the lowest price quoted to the prospective purchaser by the plaintiff was the sum of $12,250, which sum the purchaser was never shown to be willing to pay. The views above expressed as to the construction to be placed upon the plaintiff's written authorization to the effect that he was to endeavor to make a sale of the property for such sum in excess of the net amount which the owner was to receive, necessarily implies that in his offers of the property to prospective purchasers he was to fix a larger sum than said net amount as the lowest purchase price of the property, and if he found a purchaser who was ready and willing and able to buy the property for any sum up to or in excess of the net amount specified in his written authorization, he would be fulfilling its terms and also the terms of the oral understanding of the parties supplementing their written agreement; and if such purchaser when found saw fit to deal directly with the owner, and the owner with him, within the life of the plaintiff's agency, and to consummate a sale of the property for a sum equal to or in excess of the owner's net figure, the agent would be none the less the procuring cause of such sale, and would under the authorities be entitled to his reward. (Briggs v. Hall, 24 Cal. App. 586, [141 Pac. 1067].)

This disposes of every material contention of the appellants in the case.

Judgment and order affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

[Crim. No. 351. Third Appellate District.-September 26, 1916.]

THE PEOPLE, Respondent, v. CHARLES F. PRECIADO, Appellant.

CRIMINAL LAW-APPEAL STATEMENT OF "GROUNDS" AND "POINTS”— CONSTRUCTION OF SECTION 1247, PENAL CODE.-In an application for an appeal, made under section 1247 of the Penal Code, it is sufficient if the application states the grounds of the appeal, without specifying the points upon which the appellant relies, as there is no substantial distinction intended in the use of the two words. ID.-EMBEZZLEMENT-ESTABLISHMENT OF DEFENSE OF INSANITY-DEGREE OF PROOF ERRONEOUS INSTRUCTIONS.-In a prosecution for the crime of embezzlement, wherein the principal defense made was that the defendant at the time of the commission of the alleged offense was not responsible, because he was incapable of understanding the nature and quality of the act on account of his then insanity, it is erroneous for the court to instruct the jury in three or four different instructions that the defense of insanity must be "clearly proved," "clearly established," or "satisfactorily established," although the jury was also instructed that the defense of insanity may be established by a preponderance of the evidence. ID. INSANITY-PROOF OF DEFENSE-PREPONDERANCE OF EVIDENCE.

The defense of insanity may be established by a preponderance of the evidence, and trial courts are not allowed to qualify the rule by requiring a higher degree of proof. ID.-EMBEZZLEMENT OF TAX MONEYS-PLEA OF ONCE IN JEOPARDYEVIDENCE-TAKING OF MONEYS AT SAME TIME.-In the prosecution of a tax collector for the alleged embezzlement of certain moneys paid to him as such officer by certain persons, wherein he interposed the plea of once in jeopardy based upon his acquittal of the alleged embezzlement of moneys paid to him by other parties, it is error to refuse him permission to show in support of his plea that both sums were taken at the same time.

ID.-ACQUITTAL WHEN A BAR.-Where the offense on trial is a necessary element in, and constitutes an essential part of, another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution of the other.

APPEAL from a judgment of the Superior Court of Madera County, and from an order denying a new trial. Charles O. Busick, Judge presiding.

The facts are stated in the opinion of the court.

Lee D. Windrem, R. R. Fowler, Joseph Barcroft, and H. I. Maxim, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

CHIPMAN, P. J.-Defendant was informed against by the district attorney of the county of Madera for the crime of embezzlement. He was tried and convicted, and thereafter moved for a new trial, which was denied. He thereupon appealed from the judgment and the order denying his motion for a new trial.

1. The attorney-general has made a motion to dismiss the appeal principally upon the ground that defendant, in his application for an appeal under section 1247 of the Penal Code, failed to file or present to the trial judge an application containing a statement of the grounds and points on which he relies. The contention is that defendant should have stated in his application not only the grounds of his appeal, but should also have specified the points on which he relied; that the statute is mandatory in its requirement that the application contain a statement of "grounds" and "points. Section 1247 provides that upon an appeal taken from any judgment or order of the superior court, in any criminal action, where such appeal is allowed, "the defendant... must, within five days, file with the clerk and present an application to the trial court, stating in general terms the grounds of the appeal and the points upon which the appellant relies, and designate what portions of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time, the appeal is wholly ineffectual and shall be deemed dismissed and the judgment or order may be enforced as if no appeal had been taken." The section also provides that the court shall, within two days after such application is made, direct the phonographic reporter who reported the case to transcribe such portion of his notes as in the opinion of the court "may be necessary to fairly and fully present the points relied upon by the appellant." It will be observed that while the terms "grounds" and "points" are conjunctively stated in the earlier part of the section, the direction as to the portion of the reporter's notes