C. T. Ratliffe, Appellee, v. Bertha A. Cease, Appellant, 100 Kan. 445

The opinion of the court wás delivered by West, J.: Briefly stated the facts of this case are that the defendant employed the plaintiff to procure an exchange of her property for that of one T. J. Crook and $1500 to boot. Crook was interviewed by the plaintiff and agreed to pay the defendant a thousand dollars boot and to pay the plaintiff the other $500. Plaintiff reported to his client that a thousand dollars was the most he could get Crook to give.

After assuring the defendant that he was acting for her best interests she completed the transaction and received the thousand dollars, the plaintiff’s services foi^ acting as her agent to be-$100. After the contract had been entered into between the defendant and Crook, and after the papers had been deposited for final delivery upon completion of the preliminaries, she learned that the plaintiff was to receive $500 from Crook, but nevertheless went ahead with the deal. Ratliffe sued to recover his $100. The defendant counterclaimed for $500 damages for the fraudulent action of her agent.

The jury found the facts as indicated but did not allow her any damages. The defendant moved for judgment for $500 on the findings, which was refused. Neither recovered anything except the defendant, who recovered her costs. The court and .the jury left the parties where they found them. The defendant appeals. It goes without saying that the plaintiff by his conduct forfeited any right to remuneration. Had he been faithful to his- client she would have received $1500 instead of $1000 in addition to the property. When Mrs. Cease found out about the $500 transaction between her agent and Mr.

Crook she was already under contract with the latter to exchange properties. It does not lie in the mouth of the plaintiff to say that it was her duty to repudiate the deal with Crook on account of the plaintiff’s fraud. (Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852; Kershaw v. Schafer, 88 Kan. 691, 129 Pac. 1137; Rinebarger v. Weesner, 91 Kan. 303, 137 Pac. 969; 2 C. J. § 356, p. 697, and cases cited; 31 Cyc. 1434.) The plaintiff wronged the defendant out of $500. If he had been honest with her she could and would have received $1500 instead of $1000 boot money.

Whether or not he received this sum from the purchaser, and it seems that he did not, he caused the defendant to lose it and is liable therefor. The cause is therefore remanded with directions to render judgment for the defendant for $500.