He

tween plaintiffs was not such a bonding, for Porter himself testifies that, (Transcript, 64,) "I never made a bargain to buy the property, or an arrangement to buy it." On page 78 of Transcript he says, "They or I could have made a sale at any time." If words are to be interpreted according to their ordinary import, Porter was employed to assist plaintiffs to sell the mine, first, at a compensation of 10 per cent. on the purchase price, if sold; afterwards, desiring to increase his compensation, he told the plaintiffs he could only sell the mine for $1,800. This was not true. He, in fact, did sell it for $3,200. however, as Synnott testifies, left them with the impression that he could not do better up to the time of the sale. The plaintiffs did, indeed, get $2,200 in consequence of a third party, Gilman, offering them that amount. By chance, they protected themselves to that amount against the duplicity of their own employe. Through the representation of Porter that he could not sell for more than $1,800, and being greatly in need of money, the plaintiffs were induced to agree to take $2,000. This agreement, however, did not relieve Porter of his obligation as an agent to deal honestly with his principals, and give them all the knowledge that he possessed concerning the value of the mine. He testifies that he concealed the find for the reason that had they known of it they would not have sold for that price.

Again, it is claimed that if the findings show employment of Porter by plaintiffs, he was simply a middle-man to bring the parties together, and that he could lawfully take pay from either. I understand the authorities to be that, while a middle-man may sometimes take pay from both seller and purchaser, he must always deal with the utmost fairness with each. An analysis of the term affords the best explanation of the legal obligations of the parties: a man standing in the middle between two; in the center. Center is defined to be a point equally distant from the extremities. The middle-man must be and remain equally removed in interest from the two for whom he contracts. If he varies from this, even in the estimation of a hair, and gives to one knowledge or advantage which he withholds from the other, he loses his position as a middle-man, and, in the realm of equity, the law will hold him responsible for the position which he really assumes, rather than that which he advertises to occupy. Can it be said that Mr. Porter stands equidistant between the plaintiffs and defendant, when he testifies (Transcript, pp. 64, 65) that "I did not inform the plaintiffs of the fact of my finding ore? I reported it to Col. Wall." And again, "I told Col. Wall I wanted one-fourth of the mine," and that he actually received $1,000 in lieu of the quarter interest therein.

In Walker v. Osgood, 98 Mass. 351, WELLS, J., says:

"Plaintiff's employment as a broker, even if he had no authority to bind his principal, and was intrusted with no discretion in fixing the terms of exchange, and his only service was to bring the parties together, he was bound to perform that service in the interest of the party who employed him."

To a certain extent, and for certain purposes, by the understanding and usage of business and the nature of his employment, a broker is authorized to act for both parties; but what he does in any relation he does as an indifferent person, and not in the interest of either party. It is claimed on the part of the appellants that there is no finding as to the fraud of defendant or his collusion with Porter.

In Harris v. Burns, 51 Cal. 528, the court say if the trial court fail to find on an issue of fraud raised, the judgment will be reversed. In Le Clert v. Oullahan, 52 Cal. 254, the court says: "Upon the issue of fraud thus tendered the findings are entirely silent. The cause is not, therefore, in a condition to be decided." In the case at bar it is claimed that if there is no direct finding as to fraud such probative facts are found as necessarily determine the question of fraud. If this is true, it must be that it does so by alleging all the facts, circumstances, and acts of the parties connected with the transaction, in any way bearing upon the question of fraud. But an analysis of the findings will show that, while they set out as facts the conversation of the parties as to the contract of the parties, the evidence of Porter bearing on this question is entirely omitted. He says, (page 64, Transcript :) "I did not inform plaintiffs about the finding of the ore, for the reason that I did not think it to be to my interest. I was working for my own interest, and not theirs." Also the evidence of Mr. Synnott, (Transcript, p. 100:) "Porter told us the most he could get was $1,800. That was the understanding between us until the sale."

If Porter was in the employment of plaintiffs he had no right to work for his own interest and not theirs. If there was fraud, it arose from this very working for his own interest to the injury of his employers; and if defendant was in collusion with this working for his own interest instead of his employers', the fraud attaches to him also. Hence the defect in the findings upon the question of fraud.

In Norris v. Taylor, 49 Ill. 17, and reported in 1 Morr. Min. Rep. 383, is a case so nearly like the one at bar that it seems to me to determine this controversy, provided the findings should establish the facts. The principles involved in this case are fully discussed. Whether they do apply, or what principles of law apply to the case at bar, can only be determined when the issues of fact in the case are adjudicated. The question of the agency of Porter, the question of fraud of Porter, and the collusion of the defendant in such fraud, if any existed, are the vital issues upon that branch of the case which I am discussing. I am unable to understand the findings of the court below as determining these issues, and I am therefore obliged to dissent from the opinion of the court as just read.

(2 Idaho [Hasb.] 150)

LUFKINS v. COLLINS and others.

Filed March 2, 1885.

SALE-DELIVERY-PROPERTY IN POSSESSION OF THIRD PARTY-NOTICE.

When property sold in good faith is at the time in the care and custody of a third person, notice to said third person of the said sale is sufficient to constitute a delivery as to subsequent purchasers or attaching creditors.

Appeal from Alturas county, Second judicial district.

Kimball & Haywood, for appellants.

Prickett & Lamb, for respondent.

BUCK, J. This was an action of claim and delivery, tried at the June term of the district court, 1884. The action was brought to recover the possession of six mules, claimed to have been bought by plaintiff of Adams & Cunningham by bill of sale, dated November 22, 1882. The defendants claimed title to the property by virtue of a bill of sale from the same vendors, dated November 21, 1882. At the time the first bill of sale was executed and delivered to defendants, the property was in the care and custody of the plaintiff on the road-bed of the Oregon Short-line Railroad, then being constructed. The bill of sale was made at Pocatello, Idaho, and the property was about 50 miles from there. The 6 mules were a portion of 71 animals, included in the sale to defendants. Lufkins, the plaintiff, was in charge of said animals, as foreman of Adams & Cunningham, the vendors. On the morning of the day succeeding the sale to defendants, Mr. Stevens, one of the firm of Stevens & Collins, and Mr. Adams, one of the vendors, traveling towards the place where the animals were, met the plaintiff, Lufkins, and Mr. Adams informed him (the plaintiff) that they had sold the stock to defendants, and defendant Stevens then and there hired the plaintiff to continue in charge of the stock as the foreman of the defendants. The plaintiff then agreed to accept said employment, and then entered into the services of defendants.

The said stock was scattered along said road-bed some 20 or 30 miles, the principal portion being at the forty-third mile station. During the said twenty-second day of November, the plaintiff, Lufkins, and defendant Stevens, with Mr. Adams, traveled over the line to said forty-third mile station, where all the stock was turned over. During the evening, while the stock was coming in, Adams & Cunningham executed to plaintiff the said bill of sale, dated on the 22d, in which they sold all "their right, title, and interest" to the six mules. in dispute, the said stock being a part of the 71 head enumerated in the bill of sale to defendant made the day before. The plaintiff took possession of said six mules before they had been turned over to defendants, and defendants afterwards took them from plaintiff, and still hold them under claim that the title to the property passed to them, defendants, on the morning of the 22d, when plaintiff, having them in his possession, first received notice of the sale of said stock; the plain

tiff, on the contrary, claiming that the title passed to him on obtaining possession of the stock on the evening of the 22d, the defendants having up to that time never had the property in manual possession under said bill of sale.

The court gave the following instruction to the jury on the request of the appellants:

"When property sold in good faith is, at the time, in custody of a third person, notice to him of the sale is sufficient to constitute a delivery, as to subsequent purchasers or attaching creditors."

This instruction is the law upon that point.

Benj. Sales, p. 672,

§ 675, note d; How v. Taylor, 52 Mo. 592; Cofield v. Clark, 2 Colo. 101; Dempsey v. Gardner, 127 Mass. 381, 383. The court also gave, at the request of respondent, another instruction, in which the following language is used:

"But, in order to constitute such delivery, it is necessary that the seller, purchaser, and third party, should all agree.

To this modification of the former instruction the appellants excepted, and assign the same as error. The modification, being a portion of a long instruction asked for on the trial, probably was given without observing that it was a substantial contradiction of the other instruction. It seems to be unsupported by the authorities, and, being a contradiction in terms as to the law of the case, it falls within the rule that "the giving of inconsistent instructions is error, for the reason that the jury will be as likely to follow the one as the other," and also that "an erroneous instruction is not cured by another instruction upon the same subject which is correct, unless the former is specifically withdrawn." Mackey v. People, 2 Colo. 13; Rice v. Olin, 79 Pa. St. 391; Thomp. Char. Jur. § 69; People v. Campbell, 30 Cal. 312.

The bill of exceptions contains several exceptions to the ruling of the court in the matter of instructions to the jury, and the admission of evidence, which would be interesting matters of consideration; but the views of the court upon the instruction already discussed being decisive of the case, the limited time at the disposal of the court will prevent a more extended discussion of them.

Judgment reversed, and new trial granted.

MORGAN, C. J., concurs.

BRODERICK, J. I do not question the law as stated in the syllabus of this case. I think it correct; but I cannot assent to all that is said in the opinion.

(12 Or. 414)

SUPREME COURT OF OREGON.

In re Estate of GOLDSMITH and another, Partners, etc.

Filed May 19, 1885.

APPEAL-INSOLVENT ACT OF OREGON OF 1878-ORDER REMOVING ASSIGNEE. An appeal will not lie from a decision of the circuit court refusing to remove an assignee appointed under the insolvent act of October 18, 1878.

Henry Ach, for appellants.

Joseph Simon, for respondents.

THAYER, J. This is an appeal upon the part of White, Goldsmith & Co., creditors of said estate, from an order of the circuit court for the county of Multnomah refusing to remove Rudolph Goldsmith, the assignee of said insolvent debtors, under the act of the legislative assembly of the state to secure creditors a just division of the estates of debtors who convey to assignees for their benefit, approved October 18, 1878. The appellants, on the twenty-first day of October, 1884, filed a petition in the said circuit court, in which they alleged, in substance, that they were creditors of said debtors; that said assignee had failed to file such bond as the law contemplated; that he was a brother of one of the debtors; that he had placed under their control and in their possession the assets of the estate, had paid them large salaries, and did not devote any personal attention to the management of the estate; that the father and brother of one of the debtors, Julius Goldsmith, pretended to have large claims against the estate which the petitioners desired to contest; that immediately preceding the attachment of the property of the debtors, which caused the making of the assignment, the assignee advised and assisted in securing to the wife of one of the debtors, S. M. Cooper, a claim against the firm of $3,000, and that the assignee had failed to account for $1,000 in money, alleged to have been on hand at the date of the assignment.

Upon filing the petition an order was made by the said circuit court requiring the assignee to show cause why he should not be removed. as assignee of the said estate, whereupon the assignee filed an answer controverting the allegations of the petition, excepting his relationship as the brother to Julius Goldsmith and the employment of the debtors to assist in conducting the business; denying, however, that he paid them more than a reasonable salary, and claiming that their employment was necessary: The proceeding was then referred to a referee to take the testimony of the parties, and report it with his findings of fact and law. In accordance therewith, the referee took a large amount of testimony concerning the matters charged in the said petition, upon which he made a number of findings of fact, generally in support thereof, and found, as a matter of law, that the asv.7p,no.3-7