
    C. A. O’Meara v. G. P. M. Heer.
    No. 16,067.
    Principal and Agent — Payment. The payment of a sum of money to an agent held to have been under the circumstances of the case a payment to his principal, although the agent retained a part of it as a commission, the plaintiff’s right to which was denied.
    Error from Shawnee district court; Alston W. Dana, judge.
    Opinion filed June 5, 1909.
    Affirmed.
    
      Charles F. Spencer, and Codding & Marshall, for the plaintiff in error.
    • James A. Troutman, and Robert Stone, for the defendant in error.
   Per Curiam:

C. A. O’Meara entered into a contract with G. P. M. Heer by the terms of which O’Meara was to convey to Heer' a farm and Heer was to convey to O’Meara a residence property in .Topeka and to pay O’Meara $750 boot-money. Each party was to furnish the other an abstract showing good title, and the exchange of deeds and payment was to be made on or before April 23,1907. There was evidence tending to show that one R. D. Sheldon, a real-estate agent, acted as. the agent of both parties in bringing about the transaction, of which fact both had knowledge. On April 28, 1907, O’Meara went to Sheldon’s office with his deed and abstract, and Sheldon went to Heer’s office and got Heer’s deed, abstract, and $750 in cash, and, returning to his office, where O’Meara was, asked for O’Meara’s deed and abstract, which were given to him. Sheldon thereupon handed to O’Meara Heer’s deed, abstract and $638.75; also, his personal receipt to O’Meara for $111.25 for his (Sheldon’s) commission. O’Meara refused to close the deal upon that basis, claiming that he owed Sheldon no commission, .and demanded a re-exchange of papers and money, which Sheldon refused. O’Meara went to see Heer in regard to the matter and Heer referred him back to Sheldon.

After considerable controversy, the transaction was ■closed as indicated by the following receipt, which ■O’Meara signed and delivered to Sheldon:

“The Sheldon Real Estate Company.
Topeka, Kan., April 23, 1907.
“Received of R. D. Sheldon deed to lots 34 and 36 on Western avenue, in Douthitt Place, Topeka, Kan., and the sum of $638.75; it being understood that by the receipt of said deed and money I do not waive my right to the further sum' of $111.25, which the said R. D. Sheldon has retained and refuses to pay over on the ■claim that he is1 entitled to said amount as commission from me, and which claim I deny the validity of and refuse to pay. C. A. O’Meara.”

Thereafter O’Meara brought this action against Heer to recover $111.25. The district court rendered judgment in favor of Heer.

By the settlement the transaction was closed as between O’Meara and Heer. If O’Meara had any claim for the $111.25 it was against Sheldon, and not against Heer.

The judgment is affirmed.  