Schultz

I dissent. There is but slight and extremely unsatisfactory evidence to support the finding that Robinson acted as agent of McLean in and about the transfer of the lands in controversy; but it is impossible to say that said finding is totally without support in the evidence, and therefore the fact must be accepted as found, for the purposes of this appeal. This being assumed, the construction of the findings as a whole seems to me to present no difficulty. They mean that Robinson had an actual precedent authority from McLean to act for him in his interest in procuring the transfer, but that he had no actual authority to deal with Schultz and Von Bargen upon any other terms than an absolute sale and conveyance in consideration of the payment of the amount of the Haggin judgment; and that, in order to induce plaintiffs to execute and deliver their deed of conveyance, he made the unauthorized representations as found. *361 It is, of course, clear from the evidence of Schultz that Robinson never assumed to be the agent of McLean in any of the negotiations preceding the transfer, but, on the contrary, acted ostensibly as the agent of the plaintiffs, and was so regarded by them. The…

In addition to the facts of this case, disclosed by the findings hereinafter recited, it is proper to add that the plaintiffs, George Schultz and Henry Von Bargén, were the owners of a large tract of land in the county of San Luis Obispo, of the value of forty-five thousand dollars, which was mortgaged to one J. B. Hag-gin for about twenty-six thousand dollars, who had obtained a decree of foreclosure, and was threatening to sell the land thereunder. Plaintiffs were clients of the law firm of Robinson, Olney & Byrne, and C. P. Robinson, a member of the firm, informed plaintiffs that he had a person in view who would advance the necessary money to save the property from sale under the judgment of foreclosure, but that such person would deal only with him (Robinson), and that for that reason it was necessary, for the purposes of the negotiation, to put the title to this land in his name. The plaintiffs, having implicit confidence in Robinson, caused the title (which was then standing in the name of one Louis Schultz) to be transferred to him for the purpose of raising money to preserve the property. The person whom Robinson had in view was the defendant McLean, and Robinson *342…

I concur in the judgment of reversal. In my opinion, the evidence is insufficient to justify the finding of the court below that Robinson acted as the agent of McLean in and about the transfer of the lands in controversy.

I think, however, if the finding as to Robinson’s agency was supported by the evidence, the plaintiffs would be entitled to the relief which they sought in this action.