Robinson

The plaintiffs executed to the defendant the following instrument: —

Thereafter, on the same day, the defendant bargained with one Z. S. Eldridge for the sale of the land at the price of $10,500, upon the condition that the title to the property would be insured by the Title Insurance Company, and received from him $1,050 as a deposit, agreeing to return the same in case the insurance company would not insure the title, giving to him the following receipt:—

A similar receipt for $950 was given the next day.

The Title Insurance Company refused to insure the title, and thereupon, before the expiration of the thirty days, viz., September 6th, the defendant repaid the deposit to Eldridge. The plaintiffs commenced this action *82 to recover from the defendant the money paid it by Eldridge, upon the theory that the money so paid was received by the defendant in its capacity as agent of the plaintiffs, and was their money in its hands the moment it was received from Eldridge. The court rendered judgment in favor of the defendant, from which, and an order denying a new trial, an appeal has been taken.

The relation of the defendant to the plaintiffs was not that of a mere agent. While…