Ethelda M. Look, to recover the balance of an alleged commission for services rendered by the plaintiff in effectuating the sale of land. The cause was tried and a verdict of $1,727.50 returned February 16, 1916, against C. S. Andrews and Lillie M. Andrews, whose counsel, invoking the rule established in Fisk v. Henarie, 14 Or. 29 (13 Pac. 193), Wilson v. Blakeslee, 16 Or. 43 (16 Pac. 872), Thomas v. Barnes, 34 Or. 416 (56 Pac. 73), and North Pacific Lumber Co. v. Spore, 44 Or. 462 (75 Pac. 890), moved for a judgment dismissing the action notwithstanding the verdict, on the ground that the obligation sued on was joint, and that as the trial was had and the verdict returned as to only two of the defendants, no valid judgment could be predicated thereon. This motion was denied March 1, 1916, by a judgment, a part of which reads:

"Thereupon it is hereby ordered that the judgment heretofore given and made in this court and cause on the sixteenth day of February, 1916, be and the same is hereby set aside, vacated, and held for naught as to the defendant Lillie M. Andrews, but the same is continued in full force and effect as to the defendant C. S. Andrews, and that this cause be, and the same is hereby, dismissed as to the defendants Lillie M. Andrews, Clarence L. Look, and Ethelda M. Look, and that the defendant Lillie M. Andrews have and recover of and from the plaintiff her costs and disbursements in this action to be taxed."

1. In order to review the latter determination C. S. Andrews, on April 29, 1916, served a notice of appeal, and filed it May 1st following. The plaintiff's counsel move to dismiss the appeal on the ground that it was not taken within the 60 days limited therefor. The statute regulating the recording of final determinations by a Circuit Court reads:

"If the trial be by jury, judgment shall be given by the court in conformity with the verdict and so entered

by the clerk within the day on which the verdict is returned": Section 201, L. Ó. L.

Under the provisions of this enactment a motion to set aside a verdict and for a new trial will not ordinarily suspend the running of the statute of limitations as to the time limited for taking an appeal: Barde v. Wilson, 54 Or. 68 (102 Pac. 301); Oldland v. Oregon Coal & Nav. Co., 55 Or. 340 (99 Pac. 423, 102 Pac. 596); Colgan v. Farmers & Mechanics' Bank, 59 Or. 469 (106 Pac. 1134, 114 Pac. 460, 117 Pac. 807); Macartney v. Shipherd, 60 Or. 133 (117 Pac. 814, Ann. Cas. 1913D, 1257); Gearin v. Portland Ry., L. & P. Co., 62 Or. 162 (124 Pac. 256); Hahn v. Astoria National Bank, 63 Or. 1 (114 Pac. 1134, 125 Pac. 284); De Lore v. Smith, 67 Or. 304 (132 Pac. 521, 136 Pac. 13, 49 L. A. R. (N. S.) 555); Skelton v. Newberg, 76 Or. 126, 136 (148 Pac. 53). Where, however, the original judgment is modified by a subsequent order, the date of the latter judgment is the time from which the limitation for taking the appeal should begin to run. In this instance the judgment was not altered as to C. S. Andrews, but if he were dissatisfied with the dismissal of the action as to Lillie M. Andrews, he would have been obliged to appeal from that determination, notwithstanding he may have taken an appeal from the original judgment. This procedure, if sanctioned, would necessitate two appeals by the same party when a single review of the final judgment by him ought to be sufficient, in which appeal the intermediate order could be reviewed: Section 558, L. O L. We conclude, therefore, that the original judgment, having been set aside in part, was in effect vacated in all particulars, and that the modified judgment, by referring to the preceding determination, incorporated therein the original judgment as to C. S. Andrews,

thus making the latter judgment final, and the one from which this appeal was properly taken.

2. By the statutory method of computing time the last day thus limited for perfecting the appeal was April 30, 1916; but, as that day was Sunday, the notice was properly filed the next day: Section 531, L. O. L.

The motion to dismiss the appeal is denied. MOTION DENIED.

Affirmed November 28, 1916, rehearing denied January 9, 1917. ON THE MERITS.

(161 Pac. 108.)

Department 1. Statement by MR. JUSTICE Benson.

This is an action to recover an unpaid balance of a commission alleged to have been earned by plaintiff as a real estate broker. It is averred in the complaint that in January, 1915, the defendants employed plaintiff to procure a purchaser for a tract of land therein described; that he was to have as compensation therefor one half of all that defendants might receive for such property in excess of $20,000; that plaintiff did find a purchaser at a price exceeding $26,000; that he afterward agreed to accept $3,000 in full for his commission, and defendants agreed in writing to pay the same; that defendants have paid thereon the sum of $1,272.50, and there remains unpaid $1,727.50; that demand has been made for payment thereof, which has been refused. Then follows a prayer for judgment.

The defendants C. S. Andrews and Lillie M. Andrews answered separately with general denials. The defendants Clarence L. Look and Ethelda M. Look

were personally served with summons but made no appearance. When the cause was called for trial, the answering defendants objected to proceeding further until default and judgment should be entered against the defendants C. L. and Ethelda M. Look. The objection being overruled, a trial was had resulting in a verdict against both the answering defendants in the sum of $1,727.50, and on the same day these defendants filed separate motions for judgment on the verdict dismissing the suit. On February 29th, a judgment was entered in accordance with the verdict. in favor of plaintiff. When the plaintiff rested, the defendant C. S. Andrews moved the court for a nonsuit, and for a directed verdict in his favor, on the ground that the plaintiff had not introduced testimony supporting, or tending to support, the allegations of his complaint, and that the testimony introduced is in violation of the provisions of the statute of frauds, which motions were overruled by the court, and the defendants did not offer any evidence upon the trial. On February 29th, the court entered a judgment in favor of plaintiff in accordance with the verdict and, having taken under advisement the motions of the defendants for a judgment dismissing the suit, on March 1st, made and entered the following final judgment order:

"Now on this day the court having considered the motion of the defendants C. S. Andrews and Lillie M. Andrews for a judgment against the verdict dismissing the action and for a judgment against the plaintiff for their costs and disbursements incurred herein upon the ground that this is an action upon an alleged joint liability of all the defendants, and the trial being against a portion of the defendants only, there can be no judgment against separate defendants, and the court being fully advised as to said motion.

"It is ordered that said motion be and the same is in all things denied upon the grounds mentioned and set forth in said motion, but it appearing to the court from all the evidence in said cause that there was no joint obligation on the part of any of the defendants to pay the commission claimed in the plaintiff's complaint and no contract or obligation within the provisions and requirements of Section 808, Lord's Oregon Laws, as to the defendants Clarence L. Look, Ethelda M. Look, and Lillie M. Andrews, and that no cause of action has been proved against said defendants or any of them, and that the evidence offered at the trial of said cause tended to show and did show a separate agreement by the defendant C. S. Andrews alone.

"Thereupon it is hereby ordered that the judgment heretofore given and made in this court and cause on the 16th day of February, 1916, be and the same is hereby set aside, vacated, and held for naught as to the defendant Lillie M. Andrews, but the same is continued in full force and effect as to the defendant C. S. Andrews, and that this cause be and the same is hereby dismissed as to the defendants Lillie M. Andrews, Clarence L. Look, and Ethelda M. Look, and that the defendant Lillie M. Andrews have and recover of and from the plaintiff her costs and disbursements in this action to be taxed."

The defendant C. S. Andrews appeals.

For appellant there was a brief and an oral argument by Mr. Ralph R. Duniway.

For respondent there was a brief and an oral argument by Mr. William H. Wilson.

MR. JUSTICE BENSON delivered the opinion of the court.

3. There are several assignments of error, but they only involve two serious questions for the considera