Nov. 1909] Opinion Per PARKER, J. on the part of the respondent, unless the contract itself provides how the capacity of the well shall be ascertained, and such capacity was ascertained in the manner thus provided. "This provision shows clearly that the capacity of the well for the entire period covered by the contract was to be ascertained by test, and that the contractor was to be paid in full for his work long before the expiration of the fourteen months. In other words, it was agreed between the parties that the capacity of the well for all the purposes of the contract should be ascertained by test as soon as the respondent was successful in obtaining a supply of water equal to 1,500,000 gallons per day of 24 hours, and that he should be entitled to the balance due under the contract at that time. We are aware that under this construction of the contract the appellant took chances on the supply holding out for the full period of 14 months, but in our opinion no other construction will give full effect to all the provisions of the contract, which are somewhat conflicting. It follows from what we have said that the test made by the appellant established the capacity of the well within the meaning of the contract, and that test entitled the respondent to the full compensation provided for in the contract." This is in keeping with the holdings generally to the effect that when the parties have by the terms of their contract agreed that the guaranteed quality or capacity of the thing to be furnished shall be determined in a certain manner, and it is so determined, such determination becomes final. Whether the fact that the guarantee has been fulfilled is, by the terms of the contract, to be determined by test and acceptance based thereon, by silence after an agreed time for inspection, or by any other lawful method, the principle involved is the same. Staver v. Rogers, 3 Wash. 603, 28 Pac. 906; Wasatch Orchard Co. v. Morgan Canning Co., 32 Utah 229, 89 Pac. 1009, 12 L. R. A. (N. S.) 540; Pratt & Co. v. Langston Mercantile Co., 111 Mo. App. 96, 85 S. W. 134; Columbia Rolling Mill Co. v. Beckett Foundry & Mach. Co., 55 N. J. L. 391, 26 Atl. 888; Rowell v. Oleson, 32 Minn. 288, 20 N. W. 227; King v. Towsley, 64 Iowa 75, 19 N. W. 859. We 43-55 WASH think the answer fails to show facts constituting either a defense or counterclaim. It is contended that the motion for judgment on the pleadings was an improper method of testing appellant's answer. This practice has heretofore been sanctioned by this court. Port v. Parfit, 4 Wash. 369, 30 Pac. 328; Bethel v. Robinson, 4 Wash. 446, 30 Pac. 734; Lake v. Steinbach, 5 Wash. 659, 32 Pac. 767; Hanna v. Savage, 7 Wash. 414, 35 Pac. 127, 36 Pac. 269; Columbia Nat. Bank v. Western Iron & Steel Co., 14 Wash. 162, 44 Pac. 145; Morris v. Healy Lumber Co., 33 Wash. 451, 74 Pac. 662; Hubenthal v. Spokane & Inland R. Co., 43 Wash. 677, 86 Pac. 955. In the case last cited, at page 684, the court said: "The first question discussed by the appellants is one of practice. It is claimed that the proper way to test the sufficiency of a pleading is by demurrer and not by motion for judgment on the pleadings. As an abstract proposition this is true. The practice of objecting to the introduction of testimony, or moving for judgment on the pleadings, because of some formal defect in the pleadings which may be cured by amendments is not to be commended. But where the motion for judgment goes to the substance of the action or defense and not to the mere form of allegation, there is no reason why the practice should not receive the sanction of the courts. If there is no cause of action or no defense, and no defect curable by amendment, the time of the court should not be taken up in hearing testimony that can avail nothing." We think enough has been said in our discussion of the admissions and affirmative allegations of this answer to show that the motion for judgment upon the pleadings went to the very substance of appellant's defense and counterclaim. The answer does not appear upon its face to be susceptible of amendment so far as the defense and counterclaim therein attempted to be set up are concerned. We have seen that such defense and counterclaim would be unavailing to appellant, no matter how well it might be pleaded as to form. Neither does it appear by the record that appellant asked or desired to amend. Nov. 1909] Opinion Per RUDKIN, C. J. We conclude that the judgment of the learned trial court should be affirmed. It is so ordered. RUDKIN, C. J., MOUNT, DUNBAR, and CROW, JJ., concur. [No. 8222. Department One. November 15, 1909.] THE CITY OF SEATTLE, Respondent, v. A. Z. ERICKSON, Appellant.1 ADULTERATION-FOOD-POSSESSION OF WATERED MILK-EVIDENCESUFFICIENCY. The evidence is sufficient to warrant the jury in finding that milk, taken from defendant's delivery wagon, was intended for human food, where his driver testified that he had completed his delivery, that the sample was taken from a can of sour milk which he was taking home and he had no milk in any other can, but the city inspector testified that he examined five or six cans out of 35 or 40 on the wagon and found milk in all of them, and there was other testimony that the milk taken was not sour. SAME-WATERED MILK-EVIDENCE-SUFFICIENCY. The jury is warranted in finding that milk was watered, where two chemists who analyzed a sample found it below normal in its percentage of butter fats, and solids, one testifying that the milk was watered and the other that it was only skimmed. CRIMINAL LAW-TRIAL-ARGUMENT-LIMITING TIME. It is not an abuse of discretion to limit the argument to fifteen minutes in a simple prosecution for the violation of a city ordinance prohibiting the possession of watered milk with intent to sell the same for human food (CHADWICK, J., dissenting). Appeal from a judgment of the superior court for King county, Gay, J., entered May 1, 1909, upon a trial and conviction of the violation of a city ordinance, after a trial before a jury. Affirmed. John E. Humphries and George B. Cole, for appellant. Ellis DeBruler, for respondent. RUDKIN, C. J.-The appellant was convicted of the crime of having in his possession, custody and control, with intent 'Reported in 104 Pac. 1128. Opinion Per RUDKIN, C. J. [55 Wash. to sell for human food, milk to which water had been added, contrary to an ordinance of the city of Seattle. From the judgment of conviction, this appeal is prosecuted, and two errors are assigned as grounds for reversal. First, insufficiency of the evidence to justify the verdict and judgment; and second, error in law in limiting counsel for appellant to fifteen minutes in their argument to the jury. It is conceded that the appellant is engaged in the business of selling and delivering milk for human food in the city of Seattle, and that on the date alleged in the complaint two samples were taken from a can of milk in the possession of one of his drivers. There were but two controverted questions of fact at the trial. First, was the milk in the can from which the samples were taken intended for sale for human food; and second, was the milk watered. The testimony on these issues was very brief. The driver testified that he had completed his morning delivery at the time the samples were taken; that the samples were taken from a can of sour milk which he was taking home from a restaurant; that this was the only can in his wagon containing milk at the time, and that the milk was not intended for sale. The city inspector who took the samples testified, on the other hand, that the driver had thirty or forty cans in his wagon; that he examined five or six of these, each of which contained milk, and other testimony on the part of the city showed that the milk was not sour. In view of this testimony, the business in which the appellant was engaged, the conduct of the driver at the time the samples were taken, and all the surrounding circumstances, we think the jury were warranted in saying that the milk was intended for sale for human food. The appellant and his employees testified that no water was added to the milk while in their possession, so that the question of whether the milk was watered depended upon the testimony of the two chemists who analyzed the samples above referred to, the one for the appellant, the other for the respondent. These two witnesses differed in their conclusions Nov. 1909] Opinion Per RUDKIN, C. J. only. Each found substantially the same percentage of butter fat and other solids in the milk, and each testified that the milk was considerably below normal in respect to these solids. The witness for the respondent testified that the milk was watered, while the witness for the appellant testified that it was only skimmed. A bare statement of this testimony shows that the question at issue was for the jury. We think, also, that a mere statement of the issues and testimony shows that the court did not abuse its discretion in limiting the time for argument before the jury. A person accused of crime has a constitutional right to be heard by counsel, and of this right the court may not deprive him, but at the same time the power of the court to regulate the exercise of the right by reasonable rules and regulations is no longer questioned. "In the absence of statutory provisions prescribing the practice, it rests in the sound discretion of the court to put a proper limit to the time to be consumed by counsel in argument, a discretion with which an appellate court will not interfere unless the time was made so short as to be manifestly prejudicial to the rights of the party complaining. 2 Ency. Plead. & Prac., p. 701. The rule is thus stated in People v. Kelly, 94 N. Y. 526: "The time which counsel are to occupy in presenting a case to the consideration of a jury necessarily must be, to a great extent, a matter in the discretion of the court. Were it otherwise an unlimited period might be taken without any advantage to the client, and causing great delay in the proceedings of the court and an injury to the administration of justice. The time to be used for such a purpose must, therefore, be a matter to be regulated by the presiding judge upon the trial, the same as any other proceeding during the progress of the case. It is to be presumed that the court will properly guard and protect the rights of parties so that justice can be administered to all, and the judge is certainly a competent and the proper person to determine as to the time which would be required for a proper discussion and presentation of the case upon trial. Hence it follows that a court has a right to exercise a discretion in this respect, and |