Patterson

Action to enforce a vendor’s lien on real property for the principal sum of $575.21. Judgment was in favor of defendants. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

In the year 1906, Martin I. Smith was acting for defendants as an investment agent. Smith had invested money of defendants prior to the transaction which resulted in the purchase of the property sought to be held as security for the lien in this case. These investments had been profitable. Upon that subject Van Kirk testified: “He [Smith] had made some other investments for us and made us some money.” In the fall of 1906, defendant Van Kirk sent to Mrs. Crowell $2,000 to be placed in Smith’s hands for investment. At that time Smith held money belonging to defendants in about the amount of $1,479.25. This sum added to the $2,000 of Van Kirk’s made a total of $3,479.25. Mrs. Crowell was authorized to act for Van Kirk. She instructed Smith to invest the total amount of money held by him. Whatever arrangement there was between Van Kirk and Mrs. Crowell as to the share which each would have in any property purchased, or the proceeds therefrom, was a secret matter between the…