Carothers

This is an action to recover the sum of $1883.30, alleged by plaintiff to be a secret profit made by defendant in p, transaction in which the latter was acting as plaintiff's agent. Plaintiff recovered judgment for said amount and interest, and defendant appeals.

Apart from various specifications of error as to the admission of testimony, the main ground urged in support of the appeal is that there is no evidence in the record that the defendant was acting as the plaintiff’s agent in negotiating the terms of the contract, or was anything but a middleman between the parties; that the evidence shows that the plain tiff fixed his own terms and employed defendant merely to procure their acceptance, and that the defendant being also the agent of the other party to the exchange of properties out of which the claim arises, and known by plaintiff to be such, was entitled to be compensated by such other party; that consequently the sum received by defendant as such compensation was not a secret profit, and that the trial court erred in holding that it was.

We think the contention of appellant must be sustained.

The evidence shows that Caine, the defendant, being a real estate agent, had…