
    Anselm Frankel and Carrie Baldaue, Trustees, v. Emanuel Hites, Appellee, and W. S. Lockwood, Administrator, et al., Appellants.
    Agreement to Release Mortgage: breach: Agency. Realty was conveyed, on which was a mortgage, which the mortgagee . promised to release. The vendor’s agent and the purchaser met at a third party’s office to close the transaction. The deed was delivered to the purchaser, and a draft was handed to such third person, who promised to obtain the release, and a receipt for the amount given by him to the purchaser. No arrangement was had by the vendor with such third party to forward the money for the' release. The purchaser afterwards mentioned to others his distrust of the vendor, and indicated that he relied on such third party to obtain the release. Such third party paid to the purchaser all except the sum retained for securing the release, which he failed to procure. Held sufficient to show that the purchaser undertook through such third party to procure the release, and hence he must suffer the loss occasioned by the agent’s delinauency.
    
      Appeal from Mahaslca District Gourt. — Hon. A. B. Dewey, Judge.
    Saturday, December 22, 1900.
    On tbe twelfth day of March, 1896, Emanuel Hites ■executed to Beuben Shibley his warranty deed of the southwest southeast ¿, of section 1 in township 74 north, of range 17 west of fifth Principal Meridian. The agreed consideration was $800, of which $600 was left with O. P. Searle, to be forwarded to the Aetna Life Insurance Company, to obtain a release of this 40 acres from a mortgage of $3,000 held by it on this and other lands. Searle did not send the money, but failed in June, 1896. On November 20th of that year 'Shibley began an action against Hites for breach of warranty, based on the existence of this mortgage. Later, on the twenty-fifth of this month, plaintiffs began suit for the foreclosure of said mortgage. These actions were consolidated, and thereafter Lockwood, who had been appointed administrator of the estate of Shibley, who died in September, 1898, and the-heirs of deceased, were made parties. The pleadings, when completed, were such as to raise but the one issue. Did leaving the $600 with Searle constitute payment to Hites ? The district court answered this question in the negative, and entered decree accordingly. The administrator and heirs of Shibley appeal.
    
    Affirmed.
    
      J ohm O. Malcolm for appellants.
    
      Bolton, McGoy & Bolton and L. G. Blanchard for appellee.
   Ladd, J\

Hites sold 40 acres of land to Shibley for-$800. The Aetna Life Insurance Company held a mortgage on it and other land, but had promised to release the 40 upon the payment of $600. About March 12, 1896, Hites’ son,, acting for his father, and Shibley, accompanied by Lockwood, met, in pursuance-of a previous arrangemenet, at Searle’s office to close the deal. There the deed was delivered to Shibley, and a draft of $800 was either handed by the latter toSearle, or laid on the counter. An abstract was also furnished by Hites, and a receipt for the money given by Searle to Shibley. Hites’ testimony to this effect is fully corroborated j by Shibley’s subsequent statements, though inferentially denied by Lockwood. Hites also testified that Shibley advised Searle that he wanted a release as soon as he could obtain it, and that the latter promised to get it. This' is not directly denied by Lockwood, and it appears that Shibley afterwards mentioned to others his distrust of Hites, and indicated that he depended on Searle to obtain the release from the mortgage. Certain it is that no agreement was had by Hites with Searle to forward the money. For what purpose, then, could it have been left there? If the money was not paid to Searle, how did it happen that Shibley took his receipt ? If payment to Hites was intended, why was not the - draft delivered directly to him ? The only reasonable inference-to be drawn from the circumstances disclosed is that Shibley undertook, through Searle, from the purchase-price, to procure-the release, and that Hites acquiesced in that method of closing the transaction. The latter was subsequently paid, at. different times, all but the $600 retained for this purpose. The fact that Searle credited the entire amount to Hites is ■ entitled to no weight. The time of making this entry in his • books is not shown, and for this reason, if for no other, cannot be regarded as a part of the res gestae. It was simply his ■ method of keeping an account, and, at the most, amounted to ■ no more than hearsay — a written instead of an oral statement of a past transaction, concerning which, for all this record shows, he might have been called upon to testify. Nor is • the evidence of the expressed opinion of a witness concerning liability in this case of any consequence, as it does not appear to rest on a state of facts assumed in any way incon- - sistent with the testimony given. Had nothing occurred save the delivery of the deed and the transfer of the draft, there would be much force in the contention that the payment in that manner was accepted. But the evidence adduced quite satisfactorily shows that Shibley trusted Searle, rather than. Hites, with his money, and his estate must suffer the loss-. occasioned by the delinquency of his agent. — Affirmed.  