Rath

Appeal from a judgment for the plaintiff. The plaintiff sued to recover sums alleged to have *671 been retained by the defendants as secret profits in transactions in which it was alleged the defendants were the agents of the plaintiff. The complaint was in two counts. In the first count it was alleged that the defendants, as agents of the plaintiff, received the sum of $675,000 for the purpose of purchasing the issued and outstanding stock of Southern California Utilities, Inc., for the plaintiff’s account, and that in fact but $500,000 was paid for said property; that the defendants retained the difference of $175,000 for their own account, which sum was due and owing to the plaintiff and remained unpaid. In the second count the plaintiff alleged a conspiracy between the defendants Rath and Gillelen to defraud the plaintiff of said sum of $175,000. The plaintiff prayed judgment for the sum of $175,000.

Upon the trial it appeared that Rath came to southern California in 1928 for the purpose of negotiating for the purchase of public utilities for his principal, the plaintiff. Rath met the defendant Gillelen who introduced him to a Mr. Nicholson, the owner of Southern California…