Opinion of the Court- ANDERS, J. [ 7 Wash. The only assignment of error alleged is that the court erred in overruling the defendant's demurrer to the information. It is contended by the appellant that the information charges no crime, for the reason that it is not alleged therein that at the time appellant is said to have kept the house women were employed to draw custom and dance, but that the house was then used as a place of resort where women are employed to draw custom and dance. This contention is not without force. In order to set forth the facts constituting the crime attempted to be charged it was necessary to aver in the information that women were employed for the purposes mentioned in the statute at the time when it is alleged the defendant kept the house therein described. And this was not done in this instance. The term are employed" cannot by any rule of construction be made to relate to the date previously mentioned in the information. It is further contended by the appellant that the information is fatally defective in not showing that the manner of "drawing custom" and of dancing, for which the women are alleged to have been employed, was such as to shock the moral sense, or to interfere with the peace and good order of the community, or in any manner whatever to affect the community, or to constitute a nuisance. That portion of the information to which appellant's objection is directed follows the language of the statute, and is consequently sufficient, unless the words used are so general as to include cases not intended by the legislature to be included in the statute. If, therefore, women may, within the meaning of the statute, in any case lawfully be employed in any place of resort to draw custom, or to dance, then the information should have stated facts showing that this was not one of those cases, notwithstanding the language of the law suggests no exception. It is the intention of the legislature that is to be deter July, 1893.] Opinion of the Court ANDERS, J. mined in the construction of statutes, and in arriving at the intention it is sometimes necessary to restrict the meaning of the language used by the law makers so as not to include therein all that the words express. "It is a familiar canon of construction that the thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers." Riggs v. Palmer, 115 N. Y. 506 (22 N. E. Rep. 188). It was evidently the object and intention of the legislature, in passing the statute under consideration, to punish all persons engaged in any business which openly outrages decency and tends to corrupt the public morals, and not to condemn the employing of women, in all cases, even for the purpose of drawing custom and dancing, regardless of the effect thereof upon the community. At common law all public shows of a scandalous and demoralizing character were nuisances, without regard to whether the persons participating therein were men or women, while theaters and other places of innocent amusement were favorably recognized. Taken literally, the language of our statute would authorize the punishment of all theatrical managers who open their doors and permit the public to enter and witness the performance of even the greatest of female histrionic or terpsichorean celebrities, yet no one would for a moment consider that such was the intention of the legislature. That this is true is manifest, not only from a consideration of the object of the law, but also from the further fact that the legislature itself has declared that any business, vocation, profession and calling followed and pursued by men may be followed and pursued by women, and no person shall be disqualified from engaging in or pursuing any business, vocation, profession, calling or employment on ac Syllabus. [7 Wash. count of sex. Gen. Stat., § 2961. Whatever legitimate occupation or calling may be followed or pursued by men, except holding office, may also be followed or engaged in by women, and we are therefore of the opinion that the information in this case should have gone further and shown that the character of the women alleged to have been employed, or the manner of their deportment, and quality and character of conversation, was such as tended to draw together crowds of disorderly persons, or to debauch the morals of those resorting to the place. Liquor selling is recognized by our law as a legitimate vocation, and we think that even a woman may be employed in a saloon without thereby necessarily rendering the place a nuisance within the meaning of the statute in question. The judgment is reversed, and the cause remanded to the court below, with directions to sustain the demurrer to the information. SCOTT, STILES and HOYT, JJ., concur. [No. 846. Decided July 12, 1893.] N. E. GRAVES, Respondent, v. JOHN W. SMITH, Appellant. CONTRACT TO CONVEY LAND-WHEN VOID-ASSUMPSIT-INSTRUC- A party to a contract for the conveyance of lands cannot treat the contract as void, as resting in parol, when he has taken possession thereof under the contract. Where services are rendered in consideration of a contract for the conveyance of land, and such contract proves to be void for the reason that it was made by the husband alone for the conveyance of community property, in which the wife refuses to join, the party rendering such services is not compelled to resort to specific performance, but may sue upon the quantum meruit. July, 1893.] Opinion of the Court-SCOTT, J. In an action to recover a certain sum for services as a surveyor, in which the defendant answers that plaintiff agreed to take a conveyance of certain land in payment therefor, an instruction that the contract to convey said tract of land was void because the wife of the defendant was not a party thereto is not prejudicial error, where it appears from the evidence that specific performance could not be enforced. In such an action, where the defense is that the survey was so inaccurate and incorrect as to be of no value, and plaintiff testifies that defendant was responsible therefor, in that he had given him a certain county road as a correct starting point, there is no error in an instruction that, if the jury believe the testimony of plaintiff in this particular, he had a right to rely upon the representations of the defendant with regard to the correctness of this county road; and that, if they did not believe such testimony, they must determine from the evidence as to whether the survey had been correctly made. In such an action, an instruction that, if the contract was to take land in payment, and the defendant refused to convey, the plaintiff could recover a money judgment for whatever sum the jury found he had earned, is not erroneous, when there is some proof as to the value of such services; nor does such instruction take from the jury the consideration of the defense that plaintiff had failed to make a correct survey, as the court had elsewhere instructed the jury as to the character of the work. When counsel makes an improper argument to the jury during the temporary absence of the judge from his seat, but the judge, after his return to his seat, upon the objection of the opposing counsel, compels him to desist therefrom, and subsequently instructs the jury to disregard such argument, no error can be founded thereon. Appeal from Superior Court, Clarke County. Metcalf & Metcalf, for appellant. C. J. McDougall, Miller & Stapleton, for respondent. The opinion of the court was delivered by SCOTT, J. Plaintiff brought this action to recover the contract price for services performed by him for defendant as a surveyor. In his complaint he alleges that between the 1st day of July and the 15th day of August, 1891, he, at defendant's instance and request, did work and labor for Opinion of the Court-Scorr, J. [7 Wash. the defendant, by himself and servants and agents, and rendered professional services for the defendant as a land surveyor and civil engineer, in surveying the John C. Dodd donation land claim, in Clarke county, comprising 240 acres, and in subdividing and platting 140 acres thereof, and in setting stakes at the outside boundaries, and making a tracing and blue prints thereof at the agreed price of $350, which amount the defendant promised and agreed to pay him therefor. He admitted the payment of ten dollars thereon and asked for judgment for the balance of $340. The defendant answered, denying the allegations of the complaint, and for an affirmative defense alleged that the plaintiff agreed with defendant to survey and plat 240 acres of defendant's land into five acre tracts, and make a map showing correctly the subdivisions; that the plaintiff agreed to do such surveying and platting for four dollars and a half per day and his board and lodging, and that the amount due therefor was to be applied in part payment of one of said five acre tracts of land, which the defendant agreed to convey to the plaintiff, and which the plaintiff agreed to purchase of defendant when surveyed; that plaintiff took possession and made permanent improvements upon such tract; that it was agreed that said tract was worth fifty dollars per acre; and that the plaintiff was to execute a mortgage on said tract for the balance of the purchase price if any there should be after paying for such services as aforesaid. It was admitted in said defense that the plaintiff did some surveying for the defendant, but it was averred that the same was of no value because it was not accurate or correct, and the answer further alleged that the plaintiff had wholly failed to comply with his part of the contract, and that the defendant at all times stood ready and willing to comply therewith upon his part. Plaintiff replied, denying the matters alleged in the affirmative defense. |