Opinion of the Court-Budge, J.

We do not think it necessary to discuss each of the remaining 17 assignments of error separately. They are based upon the refusal of the court to grant appellant's motion to strike out all of the testimony offered by respondent in support of the affirmative allegations of his answer, and the refusal of the court to grant appellant's motion for a nonsuit at the conclusion of the introduction of testimony by respondent in support of his counterclaim. We do not think the court erred in refusing to strike out the testimony offered by respondent in support of the affirmative allegations in his answer.

The serious question that confronts us in this case is: Was there sufficient evidence to justify the court in submitting this case to the jury after all of the testimony was received in support of the affirmative allegations of the answer and counterclaim of respondent? It appears that the respondent prior to his execution of the two notes given to the Exchange Bank in the year 1908, had entered into a contract in the year 1907 with Robinson, of Jackson County, Missouri, whereby they purchased some land in Kansas City for $6,500. Taber furnished the money for said purchase as his part of the enterprise. Robinson was to furnish the material and labor in the erection and construction of nine houses upon the lots. Upon completion and sale of the houses and lots, Taber was to receive $9,200 as his share or interest in the transaction. The evidence shows that they proceeded with the contract. Robinson procured the material for the erection of the houses from the Belt Line Lumber Company, to which company he became indebted, and to which company the collaterals were subsequently turned over in order to avoid foreclosure proceedings against the property. This agreement provided that Robinson should collect all deferred payments for the houses free of charge and remit the money to Taber. When Taber went to the bank, this was the arrangement that existed between him and Robinson, and when he made the loan from the bank, he explained to the assistant cashier Wolf, that he had these notes and the arrangement between Robinson and himself for the collection of the payments as they became due, free of charge. It was Taber who made the bank acquainted with

Opinion of the Court-Budge, J.

Robinson, who vouched for his honesty and integrity; who suggested that an investigation of Robinson's character and standing in the community where he lived should be made, that he would be a proper person with whom to place these collateral notes for collection. Taber also referred Wolf to one Hess, a witness in this case, an old acquaintance of Wolf's, who, Taber said, would substantiate what he had said with reference to Robinson as an additional reason why the collateral notes should be sent to Robinson for collection.

Taber signed a letter, exhibit "J," addressed to Robinson, requesting him to forward all the notes that he had belonging to him (Taber) to Twin Falls for indorsement, and that he (Taber) would forward the same to the Exchange Bank at Lanark after indorsing them, to be by said bank returned to Robinson for collection in the same manner as he had theretofore done for Taber. Upon receipt of the notes from Robinson, Taber wrote Wolf of date September 21, 1908; that he had just received the notes from Robinson; that he had indorsed the same and sent them for security; that he supposed Robinson had written him (Wolf) and explained all, and further stated: "And he will remit to you from now on the collections on same.

The bank made statements from time to time to Taber, accounted for all payments made through Robinson, and in numerous letters urged Taber to insist that Robinson make collection upon the collateral notes and forward the same to the bank for credit. Taber was notified by the bank repeatedly that Robinson was behind with the collections. The bank informed Taber that they had requested Hess to call upon Robinson and insist upon the collections of the collateral notes being made. Taber wrote to Wolf in response to these communications and particularly of date December 5, 1910, as follows:

"Mr. Guy Wolf, Lanark, Ill.

"Dear Sir:-Yours rec'd some time ago in regard to Mr. Robinson's delinquence on payments. I have written him and have received no answer from him. I wish you would take

Opinion of the Court-Budge, J.

this in hand and see what you can do with him. I will write him again this evening.

"Yours respectfully,

"GEO. C. TABER."

There are numerous communications from Taber to the bank in which he states that he has written Robinson insisting upon the collection of the collateral notes and requests the bank to make arrangements with Hess to assist in the collection of these collateral notes. In each and all of these communications, fairly construed, Taber never relinquished ownership or control, or his right to collect the collateral notes. It is quite clear that both Taber and the bank were industrious in their endeavor to bring about the collection of these collateral notes.

On November 21, 1911, Robinson addresses a letter to Taber at Twin Falls, in which he informs Taber that the collateral notes have been diverted. After receiving this information, on December 25, 1911, Taber left Twin Falls for Lanark to consult Wolf. After reaching Lanark a settlement was finally brought about between Robinson and Taber and the notes received from Robinson were put up as collateral security with the bank to secure the payment of the obligations sued upon in this action.

The bank, by the verdict of the jury, has been held responsible for the loss of these collateral notes, upon the ground and for the reason, as appears from the record, that the bank was negligent in handling these collateral notes and their failure to collect the same. We do not think the record supports this conclusion. Within two or three months after the collateral notes were received by Robinson, he diverted them. No effort upon the part of the bank or Taber would have resulted in the recovery of these collateral notes. There could, therefore, be no negligence in the collection of these collateral notes. Robinson had parted with them and was not in a position to collect the payments as they became due. Therefore, if the bank was negligent at all, its negligence consisted in forwarding the notes to Robinson for collection. This, the

Opinion of the Court-Budge, J.

bank never would have done if it had not been for the conduct of Taber, which consisted in calling the bank's attention to Robinson, recommending him as a man capable and honest, the proper person to be entrusted with the collection of these notes, who would perform the services free of charge and calling the bank's attention to Hess, an old acquaintance, to verify what he (Taber) had said with reference to Robinson.

"Where a party by conduct has intimated that he consents to an act which has been done or will offer no opposition thereto, though it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the action to the prejudice of those who have acted on the fair inference to be drawn from his conduct." (Divide Canal & Reservoir Co. v. Tenney (Colo.), 139 Pac. 1110; Truesdail v. Ward, 24 Mich. 117.)

The more consistent position to take, is that Robinson was the person jointly agreed upon by Wolf and Taber to collect these collateral notes; that he became the joint agent of both of the parties; that being true, neither could charge the other with negligence. This fact is further emphasized when we consider the letters written by Taber with reference to this transaction and that Taber ratified the settlement made by Robinson and Wolf; indorsed the notes given by Robinson and thus adjusted his obligations with the bank. (Murdock

v. Clarke, 90 Cal. 427, 27 Pac. 275; Damon v. Waldteufel, 99 Cal. 234, 33 Pac. 903.)

We think that it was the duty of the court, after all of the testimony had been submitted, to have taken the case from the jury and directed that judgment be entered for the appellant. Where a party is entitled to have a verdict directed in his favor at the close of the evidence, and the case is reversed on his appeal, a new trial will not be granted. The case should be remanded with instructions for judgment to be entered in his favor. (Sec. 3818, Rev. Codes; Bernhard v. Reeves, 6 Wash. 424, 33 Pac. 873; Larson v. American Bridge Co., 40 Wash. 224, 111 Am. St. 904, 82 Pac. 294.)

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Argument for Appellant.

"Where a party shows no right to recover under any possible state of proof, the court is not bound to submit the case to a jury." (Gorman v. Commissioners of Boise County, 1 Ida. 655.)

For the foregoing reasons the judgment appealed from must be reversed, and the cause is hereby remanded, with instructions to the trial court to enter judgment for the appellant as prayed for in its complaint, in accordance with the views expressed in this opinion. Costs are awarded to appellant.

Sullivan, C. J., and Morgan, J., concur.

(February 3, 1915.)

STATE, Respondent, v. CHARLES DRISKILL, Appellant.

1. Held, that the evidence is sufficient to support the verdict, and that the court did not err in refusing to give certain instructions.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Prosecution for statutory rape. Conviction and sentence of defendant. Judgment affirmed. '

McNamee & Harn, for Appellant.

Admission of testimony as to acts of misconduct and lewdness by the defendant with other girls was clearly reversible error. (People v. Stewart, 85 Cal. 174, 24 Pac. 722; People v. Bowen, 49 Cal. 654; People v. Lenon, 79 Cal. 628, 21 Pac. 967; People v. McNutt, 64 Cal. 116, 28 Pac. 64; People v. Barnes, 48 Cal. 551; People v. Elliott, 119 Cal. 593, 51 Pac.