(dissenting) — I am not in accord with the majority opinion either with respect to the procedural matters referred to or the conclusion that any act of appellant violated subdivision 2 of RCW 9.54.010. It is my view the evidence submitted by respondent not only failed to prove the existence of any fact creating a question for the jury to determine, but affirmatively established that, as a matter of law, the statute was not violated.
With reference to procedural questions, respondent contended in its brief and upon oral argument that appellant did not lay the necessary foundation either at the trial or upon his appeal to enable this court to review the record, in that he (1) took no exception to the ruling of the court denying a challenge to the sufficiency of the evidence to sustain the charge in count I of the information, (2) made no challenge at any time to the sufficiency of the evidence to support count V, and (3) made no challenge or motion of any kind at the close of all of the testimony. Respondent further contended that, by becoming a witness in his own behalf, appellant waived his challenge to the legal sufficiency of the evidence, and that counsel waived his claim that the verdict was contrary to law and the evidence.
Under our trial practice, it is not necessary to take an exception to a ruling or decision made by the court during the course of a trial in order that a claim of error may be considered by the trial court, or by this court on appeal, un*15less it is so provided by statute or rule of court. RCW 4.80.050.
Appellant at the close of respondent’s case in chief challenged the legal sufficiency of the evidence directed to all counts in the information. The challenge was argued at length, and the court sustained it as to counts II, III, and IY, and in part to counts I and V. No challenge to the legal sufficiency of the evidence was made at the close of all of the testimony, but one was made before the entry of judgment and sentence in the form of or as part of a motion for a new trial. This part of the motion was “that the verdict is contrary to the law and the evidence.” Upon the principle recognized in State v. Hyde, 22 Wash. 551 (563), 61 Pac. 719, the trial court should have treated such part of the motion as one in arrest of judgment, and we should now do so on this appeal.
I do not agree with the claim made that appellant waived his challenge to the legal sufficiency of the evidence made at the close of respondent’s case by not standing on the same and declining to proceed further with the trial. I base my view upon an exception to the general rule recognized in State v. Brown, 178 Wash. 588, 35 P. (2d) 99. In that case, we quoted from 16 C. J. 938, Criminal Law, § 2305, as follows:
“ ‘Although there is authority to the contrary, as a general rule a motion for a directed verdict, made at the close of the case for the prosecution and overruled, is waived by defendant proceeding with the trial and introducing evidence, unless the evidence introduced has no hearing on the merits of the case.’” (Italics mine.)
I emphasize the exception to the general rule, which works out in this way: The state may submit evidence in support of a charge which may be legally insufficient to establish the charge made. A challenge on that ground is not a motion for a nonsuit as in civil cases. If such challenge is well taken, the defendant is entitled to the relief prescribed in State v. Hyde, supra. If the challenge is denied, a defendant may stand thereon and offer no evidence, or he may proceed with the trial; if he does the latter, he may adduce evidence *16either by himself or his witnesses which will supply the deficiency — that is a chance he takes. But if the situation as it existed at the time the state closed its case is not changed, the exception to the general rule applies, there is no waiver of the original challenge, and he may urge error with reference thereto on appeal. When considering this question and what is said in opinions of the courts, one should have in mind the difference between the legal sufficiency of the evidence to establish a crime charge and the factual sufficiency thereof; and when this is done, the general rule and its exception are not difficult to apply to a given situation.
I find nothing in the record that added anything to respondent’s case in chief. The challenge later made had equal basis for its support that previously existed.
I find no merit in respondent’s claim that counsel for appellant waived the legal right he had acquired when no legal evidence had been adduced to establish the charges made in counts I and Y of the information. If anything was waived, it was only those parts of the motion for a new trial relating to matters discretionary in the court or to matters factual, or a claim that the evidence was not sufficient to satisfy beyond a reasonable doubt, or that the presumption of innocence had not been' overcome, or that substantial justice had not been done, and matters of like character. The part of the motion which should have been treated by the trial court and which we should now treat as one in arrest of judgment, involved no element of discretion; if well founded in law, it involved a matter of right.
It is my view that the assignments of error “the court erred in refusing to dismiss what remained of counts I and V against appellant . . . ” and “that the court erred in holding there was sufficient evidence to take the case to the jury ...” are sufficient under our rules to entitle appellant to a review of the questions whether the trial court erred in not sustaining the challenge to counts I and V and in not arresting judgment.
The appellant was charged by five counts in the information with violating RCW 9.54.010. The court' dismissed *17counts II, III, and IV at the close of respondent’s case. Counts I and V were limited to a single issue. The original charge was in a double aspect — one being a charge of obtaining money under false pretenses by three different representations, and the other being a charge of embezzlement. By statute, the crime of larceny may be committed in either way. At common law and by statutes prior to the enactment of the criminal code in 1909, the two were separate and distinct offenses. They are necessarily so treated under our present statute upon the trial of a case, for the reason that in the former money is wrongfully obtained by the defendant from the complainant by some false pretense; while in the latter case (embezzlement) he acquires the money rightfully in the capacity of an agent, bailee, trustee, etc., and then appropriates the same to his own use.
Respondent sought to prove the charges in counts I and V by the testimony of the Wests, Palumbo, the written contract between them and appellant, and the testimony of two architects. When respondent closed its case, appellant moved to require that an election be made between the two forms of statutory larceny and challenged the legal sufficiency of the evidence to establish either crime.
The discussion with the trial judge was lengthy and the whole field was explored. The trial judge at first was of the view that, if any charge against appellant had legal support, it was that of embezzlement. Respondent contended that its evidence established that appellant had obtained money from West and Palumbo by false representations. Appellant contended that neither charge had been established as a matter of law. The result was that the court eliminated the alleged pretenses that appellant was a capable residence construction contractor and one who could secure a loan to finance the construction of residences for West and Palumbo. The embezzlement charges were also eliminated. In addition to this, the court eliminated that part of the evidence by which it was claimed by respondent that West was given to “understand” and Palumbo was “told” by appellant that he would' receive no part of *18the money advanced by them to pay for the items mentioned in the information, including an architect’s fee of $250. The limitation placed upon the information and the evidence in support thereof can best be gathered from the language of the trial judge as follows:
“I have a note here that he (Palumbo) testified that he was told (by Emerson) that the plans would cost $250.”
“Now four and last representation ‘that the architects fee was $250.00’. Now, the written contract that they signed merely said that for $465 he would produce plans, specifications and do these other things. It didn’t say how much he would pay for each, but Mr. West testified that he told him before he got this money that $250 of this amount would be necessary to pay the architect. . . . And it seems to me that there is a factual question on that last misrepresentation sufficient to go to the jury on the theory did he represent to them that the architect’s fee was 250. The testimony of the architect is that he had, he had an arrangement with him for a hundred and fifty dollars, and that he had made that arrangement at a date before he talked with the Wests. So at the time that he talked to the Wests, he had every reason to believe that the only thing he would pay out was 150, and did he represent 250 in the effort to obtain a greater amount of money from them than he otherwise would if he told the truth? It seems to me that is the only issue left in that count so far as the misrepresentation. . . .
“It seems to me again, as I said in the West case, unless this man is guilty of obtaining the money originally by the false representation by exaggerating the amount of architects costs, that he wouldn’t be guilty of anything. . . . the case will go to the jury on counts I and V but on the sole theory of misrepresentation, falsely exaggerating the architectural costs.” (Italics mine.)
The court was asked before the appellant proceeded with his case to inform the jury of the limitation placed upon the charges made in the information. The trial judge said to the jury:
“The defendant is now accused in count I of obtaining the sum of $465 from Thomas A. West and Ruth H. West, his wife, by falsely representing that the architects fee was $250. As to count V, he is charged with obtaining $325 from David A. Palumbo by falsely representing that the architect’s services was the sum of $250.”
*19I quote the foregoing excerpts from the remarks of the trial judge, as I deem them important in clarifying the confusion created by the respondent’s evidence. I also quote from the Wests’ contract referred to in the majority opinion, the following:
“A payment of $465 to Supervisor is hereby acknowledged to cover cost of Architectural fees, services to include planning of house with Owner, finished blue prints and specifications at F.H.A. standards or better; cost of getting list of bids on sub-contracts and (owner has survey).”
The testimony of the Wests and Palumbo relating to the limited charge was as follows:
Mr. West: “Q. Now pursuant to that contract, did you pay any money to Mr. Emerson? A. Four hundred and sixty-five dollars cash. Q. And was there a discussion with Mr. Emerson as to what that cash was to be used for, the purpose for which it was to be used? A. That was to start our house, that was for nothing else but to start our house, starting the construction of our house. Q. Was there any discussion at the time of signing that contract or prior to signing the contract about blueprints and— A. No; sir. Q. —architecture service? A. There was not. Q. All right. At the time of the signing of that contract, was there . a discussion as to architects? A. I didn’t get the question. Q. At the time of signing this agreement was there a discussion about blueprints and architects fees? A. Well, that was to come out of the money that we appropriated there. Q. the money you just mentioned? A. Yes, sir. Q. The $465? A. Yes, sir. Q. All right. Was there any discussion with Mr. Emerson as to how much the architects fees would be? A. Yes, sir, $250. Q. Procuring of blueprints? A. Or as to what the prints would cost us.”
Mrs. West: “Q. In response to my question about an architect fee, I asked you if you recall or remembered any understanding about what the architect’s fee was, and you then stated one hundred dollars. I want you to think back in your recollection and see if you can recall or refresh your recollection as to what the architect’s fee, what Mr. Emerson represented to you that the architect had to be paid? A. Oh, $250. . . . Q. All right. Now, of this $465 after deducting the 250 for architect’s fees, do you recall what the discussion of what the other portion of that was to be for? A. Well, the balance was supposed to be *20spent to add onto the house, starting construction of the house. . . .
“Q. I want to ask you, Mrs. West, relative to your understanding of this contract, State’s 1, after talking with Mr. Emerson is it your understanding that this ‘supervisor agrees to produce house,’ that clause there providing for a service fee of $50 per week, is it your understanding after talking with Mr. Emerson that there was to be no payment on that until such time as construction was under way? A. That’s right. Q. All right. I want to ask you, first, with regard to the clause down here which says ‘Payment of $465 to Supervisor is hereby acknowledged to cover cost of Architectural fees, services (and there is a comma there after Architectural fees) services to include planning of house with Owner, furnish blue prints and specifications at F.H.A. standards or better; cost (and then a semicolon) cost of getting list of bids on (some) subcontracts. . . . ’ was it your understanding after talking with Mr. Emerson that none of that money was to go to him personally for his own use? A. That’s right. Q. And that from that money was to be paid the costs of the architect’s fees, which included the planning of the house with the owner, the finished blue prints and specifications at F.H.A. standards or better, was it your understanding from Mr. Emerson that, that was to be $250, that is what he had to pay for it? A. That’s right.”
Mr. Palumbo: “Q. Now with regard to what has been admitted now as State’s Exhibit 4, I want to ask whether with regard to the paragraph which reads: ‘A payment of $325 (written above the sum of 500 crossed out) to Supervisor is hereby acknowledged to cover costs of Architectural fees, services to include planning of house with Owner, finished blue prints and specifications at F.H.A. standards or better; (and then a semi-colon, the) cost of getting list of bids on sub-contracts and survey of lot if Arichtect needs it.’ Did you have a discussion with Mr. Emerson as to what specifically this $325 was to cover? A. Yes. Q. And will you just tell the jury what that was? A. Well, it was the $250 for architect’s fees, and it was, it was $25 for the survey of the lot. And it was $50 for the permits. No, that was it, it was $50 for the costs of getting the bids, and the rest was — was $10 or so he had to get the permits to build the house. Q. All right. Now, was there any discussion with Mr. Emerson as to whether he, himself, was to get any of this $325 under any circumstances? A. No. Q. And what *21did he say as to whether he was to get any of that $325? A. No, he wasn’t supposed to be getting any of it. He was supposed to be getting $50 a week for ten weeks while the house was being built.”
The architect (MacDonald) testified that the total charge for all acts and things done to secure sufficient blueprints and specifications was $250, but inasmuch as appellant did such part of the work for him as making preliminary sketches, interviewing the owner with him, obtaining for him the floor area, the number of rooms, the orientation of plans, information as to the type of lot, “and so on,” and considering the fact that appellant furnished him with other business, he divided the charge of $250 with him so that he received from appellant $150 and appellant retained $100.
Much of the confusion that existed arose over the phraseology used when referring to the amount of money making up the costs to West and Palumbo of the plans. I again refer to the above-quoted provision in the contract with reference to architectural fees and what they included. In other instances, the words “architect’s fee” were used, as well as words of similar import. The idea advanced was that when reference was made to the subject of architectural “fees” or “costs” it meant the amount of cash the architect actually received from appellant. Such thought overlooks the fact that the actual charge made for the plans was $250, of which amount the architect permitted appellant to retain $100 for doing part of the work and furnishing him a substantial amount of business. The idea was also sought to be conveyed that the fee of the architect was in fact $150 by the assertion of Mrs. West that she “understood” that none of the $465 advanced to appellant “was to go to him personally for his own use,” and by the statement of Pal-umbo with reference to the item of $325, “No, he wasn’t supposed to be getting any of it.” Respondent wants the conclusion drawn that West and Palumbo, by reason of false representations, were induced to part with more money than they would have parted with had they known that appellant was to get any part of the $250 architectural costs; *22but inasmuch as the court ruled out such a notion and limited respondent to its charge that appellant falsely exaggerated the costs of the plans, we have the latter question only for review.
Accepting the proof that appellant represented to the parties the plans would cost them $250 each, I find no evidence in the record that either the cost to them or the charge made by the architect was $150, or that either West or Palumbo was misled, or that they did not get what they actually bargained for, namely, plans to present to the FHA and the city of Seattle. The plans did cost them $250 each; there was no exaggeration of the cost of the plans and no deception practiced.
In a case of this kind, where one claims that in bargaining with another false representations are made by which he is induced to part with money, he is not cheated or defrauded in the sense contemplated by the statute if he gets in exchange for his money that for which he bargained. In re Rudebeck, 95 Wash. 433, 163 Pac. 930; State v. Sargent, 2 Wn. (2d) 190, 97 P. (2d) 692, 100 P. (2d) 20, and text authority therein cited.
This court has not had occasion to apply the statute to such a factual situation as is disclosed by the record, but we may look to the foregoing cases for statements of the principles involved affecting a charge of obtaining money under false pretenses. In those cases, we recognize the rule that a person is not defrauded in the sense contemplated by the statute unless he parts with his property or money and fails to receive in exchange that for which he bargained. In the Sargent case, we said:
“It will be noted that it is pointed out in both of the foregoing quotations that a crime is not committed if the person for whom the property is obtained gets in exchange what he bargained for.”
Summarizing the situation disclosed by respondent’s case, it seems very clear that West and Palumbo bargained for plans to present to FHA and the city of Seattle; that appellant represented to them that the architectural costs to *23procure them would, be $250 for each set of plans; that each party advanced to appellant a certain sum of money out of which would be taken the architectural costs; that by reason of the fact that appellant did some of the work for the architect and had furnished him some other business, he was allowed to retain $100 therefor in each case.
- The legal conclusions necessarily to be drawn are that appellant at no time “falsely exaggerated the architectural costs;” that West and Palumbo received just what they bargained for, and that the statute upon which the information was based was not violated by appellant.
The judgment should be reversed, and the cause remanded with instructions to vacate the judgment and sentence and dismiss counts I and V of the information.
Hamley and Finley, JJ., concur with Grady, C. J.