Crocker

This is an appeal from an order granting the plaintiffs’ motion for a new trial.

The suit was brought 'by the plaintiffs for damages for fraud of the defendant, committed by him while acting as their agent for the sale of the land described in the complaint. The nominal purchaser was one Schweppe, with whom the defendant, as plaintiffs’ agent, had made a contract of sale August 21, 1901, for the sum of $25,000, and to whom a deed of conveyance, executed to him as grantee by the plaintiffs and placed in escrow for delivery on receipt of the purchase money, was delivered on the sixteenth day of Octo *276 ber. Sehweppe had executed a prior unrecorded deed of the land to one Hinman, but the land was shortly afterward re-conveyed to him, and by him conveyed to one Earl by deed of date November 12, 1891. It is alleged in the complaint that Sehweppe was not the real purchaser; that he was an intimate associate and blood relation of the defendant and Hinman, who was his father in law, and by agreement with the defendant permitted him to use their names in the transaction, but that in truth they had no interest in the purchase, but took the deeds referred to for the use and benefit of the…