County. This was no-license territory under the law. The city of Chico, in Butte County, a few miles distant, was "wet" territory. M. Hamilton, named in the indictment as the person to whom the sale was made, was a detective employed to discover violations of the local option law. Hamilton asked the defendant Winkler to procure for him at Chico a bottle of whisky, and deliver it to him at Hamilton City. The defendant stated that he did not make a business of it, but did it for some of his customers. He requested Hamilton to sign a blank form or order which, when filled out and signed, read as follows:

"John Daley, 426 Third Street, Chico, Cal:

"I hereby purchase from you at your store in Chico One Bottle Beverage. I hereby appoint J. S. Winkler my special agent for the transportation of these goods from your store, 426 Third street, Chico, to my home, and you are hereby authorized and instructed to deliver them to him for me at ......

"(Signed) D. O. MILLS.”

(The name "D. O. Mills" was assumed by Hamilton.) At the same time, Hamilton handed Winkler one dollar, the price of the whisky. Winkler went to Chico to attend to business of his own, obtained the bottle of whisky from Daley, the person named in the order, paying him the dollar, returned to Hamilton City and handed the bottle of whisky to HamilThere was evidence that the order signed by Hamilton was on a prepared form, on which the name and address of Daley were printed. The name of Winkler, and the words "One Bottle Beverage" were written in. It was also testified that Winkler had a number of these blanks in his possession.

ton.

The court refused to give three instructions requested by the defendant. These instructions presented, in different forms, the proposition that if the defendant, in purchasing the liquor outside of the no-license territory described in the indictment, acted on behalf of and as the agent of the prosecuting witness, having no interest in the liquor, and deriving no profit from the transaction, he was not guilty of "selling" such liquor to the prosecuting witness. No instructions of similar purport were given by the court. The defendant was entitled to have the jury charged on these lines, even if the instructions as framed were subject to the rather technical and minute criticisms suggested by respondent. (State v.

Turner, 83 Kan. 183, [109 Pac. 983].) It may be that the evidence warranted an inference, on the part of the jury, that the course of procedure adopted by Winkler was a mere pretext for covering sales of liquor made by him either for himself or for Daley, and that in fact he was not an agent of the purchaser. But under the evidence, the jury might have found that the transaction was bona fide, and precisely what Winkler represented it to be. The statute prohibits, in section 13, the sale of alcoholic liquors. It does not prohibit their purchase. More specifically, it does not prohibit one from purchasing intoxicating liquors outside of no-license territory, and bringing them within such territory for his own consumption. If a man may do this personally, he may do it through an agent. Hamilton had the right to buy liquor in Chico and bring it to Hamilton City for his own use. If he did this through Winkler, acting as his agent, neither he nor the agent was guilty of a violation of the law. This conclusion is supported by the uniform current of authority. We cite a few cases. (State v. Lynch, 81 Ohio St. 336, [28 L. R. A. (N. S.) 334, 90 N. E. 935]; Strickland v. State (Tex. Cr.), 47 S. W. 720; Reed v. State, 3 Okl. Cr. 16, [24 L. R. A. (N. S.) 268, 103 Pac. 1070]; Partin v. Commonwealth, 140 Ky. 146, [130 S. W. 968]; Lee v. Commonwealth, 143 Ky. 355, [136 S. W. 624]; Simpson v. Commonwealth, 151 Ky. 442, [152 S. W. 255]; State v. Cullins, 53 Kan. 100, [24 L. R. A. 212, 36 Pac. 56]; State v. Turner, 83 Kan. 183, [109 Pac. 983]; Davis v. State, 53 Tex. Cr. 373, [109 S. W. 938]; Evans v. State, 55 Tex. Cr. 450, [117 S. W. 167].)

It was the defendant's right to have the jury pass upon this question of agency, under instructions that, if he was acting solely as the agent of the purchaser of the whisky, he could. not be convicted of making a sale of it to such purchaser. The refusal to give such instructions was highly prejudicial. The judgment and the order denying a new trial are reversed.

Shaw, J., Melvin, J., Henshaw, J., Lorigan, J., Lawlor, J., and Angellotti, C. J., concurred.

[S. F. No. 7102. Department One.-December 27, 1916.]

WILLIAM BAYLY, Appellant, v. HENRY E. LEE,

Respondent.

CONTRACT- FAILURE OF PERFORMANCE - TRIAL OF ISSUE-APPEAL-INSUFFICIENCY OF ANSWER-OBJECTION NOT REVIEWABLE.-In an action to recover damages for an alleged breach of contract, where the plaintiff tried the case on the theory that defendant's alleged failure to perform was in issue, he cannot for the first time on appeal object that the denial in the answer was insufficient for any purpose.

ID.-LEGAL SERVICES-ENFORCEMENT OF RIGHTS UNDER CONTRACT-ALLEGED BREACH-PROPER NONSUIT.-In an action to recover damages for an alleged breach of contract whereby the plaintiff employed and retained the defendant, as an attorney at law, to enforce plaintiff's rights under a contract made between plaintiff and a third party, by the terms of which the latter agreed to sell and deliver to plaintiff certain shares of corporate stock upon the terms and conditions stated, a nonsuit is properly granted, where it is shown that the plaintiff failed to pay or to make a tender of payment of the balance of the purchase price as provided in the contract, which payment was made a condition to the transfer of the stock.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. George A. Sturtevant, Judge.

The facts are stated in the opinion of the court.

Joseph K. Hutchinson, and Walter Slack, for Appellant.

Clayberg & Whitmore, for Respondent.

SLOSS, J.-This action was brought to recover damages for breach of contract. The court granted defendant's motion. for a nonsuit, and entered judgment accordingly. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The complaint alleges that the defendant is an attorney at law, and that on December 2, 1909, the parties entered into a written agreement, whereby the plaintiff employed and retained the defendant as his attorney to enforce plaintiff's rights under a certain contract between said plaintiff and one

Dolbear, dated November 1, 1905. It is alleged that the plaintiff paid the defendant five hundred dollars as partial compensation for the services thus to be performed; that the defendant wholly failed and neglected to do the things agreed to be done by him; that under the agreement between plaintiff and Dolbear plaintiff was to receive stock of the value of fifty thousand dollars, and that Dolbear has become unable to transfer said stock or to pay the value thereof to the plaintiff. Judgment is asked for fifty thousand five hundred dollars.

The answer denies, among other things, that the defendant failed to perform his obligations under his agreement with plaintiff. It is true that the denial is expressed in an imperfect way. We cannot, however, agree with the appellant's contention that there is a total failure to raise an issue with respect to the performance by the defendant of his agreement. Furthermore, the record shows that the plaintiff tried the case upon the theory that defendant's failure to perform was in issue. Under these circumstances, this court will not entertain the suggestion, made for the first time on appeal, that the attempted denial was ineffectual for any purpose. (Green v. Lake Superior & P. Fuse Co., 46 Cal. 408; Spiers v. Duane, 54 Cal. 176; Sprigg v. Barber, 122 Cal. 573, [55 Pac. 419].)

At the trial the plaintiff offered in evidence a paper claimed to be a copy of the agreement of November, 1905, between himself and Dolbear. On defendant's objection, the paper was not admitted, and its exclusion is one of the errors assigned. The ruling, if erroneous, was, however, harmless. An inspection of the paper shows that, if it had been admitted, it would, with the other evidence in the case, have demonstrated the propriety of the ruling granting defendant's motion for a nonsuit. This contract was signed by Dolbear alone. By its terms he agreed to sell and deliver to Bayly, in consideration of the sum of two thousand five hundred dollars, five thousand shares of stock to be issued to him in a company to be incorporated for the purpose of taking over and exploiting certain mineral claims, or to assign to said Bayly an equivalent interest in the proceeds of said mining claims if the proposed incorporation should not be consummated. One thousand two hundred and fifty dollars was to be paid at the time of signing the contract, and the remainder when the contemplated transaction involving the claims should be completed. Bayly was not bound to pay the second one

thousand two hundred and fifty dollars, but was given merely an option to pay the same, it being agreed that Dolbear should be under no obligation in case Bayly did not make the payment at the time specified or on demand.

Dolbear's undertaking to transfer being conditional upon the payment of the second one thousand two hundred and fifty dollars, Bayly was not in a position to demand performance until he made payment or tender of this amount. (Civ. Code, sec. 1439.) There is no evidence that such payment or tender was ever made. So far as the proof shows, the time never arrived when the plaintiff had any rights to enforce against Dolbear, or when the defendant, as plaintiff's attorney, could take steps to compel performance by Dolbear. The payment necessary to the maturing of plaintiff's claim against Dolbear was a matter in the control of the plaintiff, not of his attorney. Until plaintiff does what is necessary to establish a cause of action, he will not be entitled to ask the defendant to procced in his behalf against Dolbear, by suit or otherwise. The evidence, therefore, fails to show that the defendant did not do. all that he was required to do under the contract. This was one of the grounds specified in the motion for a nonsuit, and it was sufficient to justify the granting of the motion.

Various rulings on the admission of evidence are assigned as errors, but none of them could have any bearing upon the matter already discussed. There is no occasion, therefore, to consider them.

The judgment and the order appealed from are affirmed.

Shaw, J., and Lawlor, J., concurred.

Hearing in Bank denied.