er for commission is thus based on the assumption of her lack of good faith. But in that case, as in the present, the owner's good faith in supposing that she was actually selling to a third party was apparently unquestioned. In that case, too, the good faith of the owner in paying a commission to the one she innocently supposed was a disinterested broker is the same in effect as the good faith of the defendant in selling to a third party at a less price than she would have sold if she had become obligated to pay a commis

sion.

For various somewhat analogous situations, see Quist v. Goodfellow, 8 L.R.A. (N.S.) 153, and cases collected in the note (99 Minn. 509, 110 N. W. 65, 9 Ann. Cas. 431). We agree with the plaintiff's

It will be seen that in the reported case (RITCH v. ROBERTSON, ante, 81) it is held that the broker is not entitled to his commission if the owner in good faith sells to a dummy of the broker's customer. The court seems to base its decision largely on the proposition that the real buyer was estopped to say to the seller that he was the buyer. It is not clear why this estoppel should defeat the broker's claim to his commission. The court does not directly refer to the general rule that the owner's ignorance that the broker procured the customer is no defense to the broker's claim for commission.

In Feldman v. O'Brien (1898) 23 Misc. 341, 51 N. Y. Supp. 309, R., wishing to invest some money in real estate, called upon the plaintiff, a real estate broker, who showed her the houses in question, which were also in the hands of B., another broker; and R. negotiated about the matter severally with both brokers. Finally B. made a contract to buy the houses himself at a lower figure than was given to the plaintiff, stating that he hoped.

to sell them to R., which he did, assigning the contract. It was held that the plaintiff was not entitled to any commission.

In White v. Maynard (1910) 15 B. C. 340, the defendant listed a lot with the plaintiff for sale, who interested R.; the defendants then gave an option to D., a real estate agent, who sold to R., not knowing of the former negotiation. It was held that the plaintiff was not entitled to a commission, there being no evidence that the defendants knew that R. was the purchaser, or that they colluded with D. to deprive the plaintiff of his commission.

The two following cases are closely similar on the facts to the reported case (RITCH v. ROBERTSON):

In Goldstein v. Walters (1889) 15 Daly, 397, 28 N. Y. S. R. 177, 7 N. Y. Supp. 756, reargument denied in (1890) 29 N. Y. S. R. 323, 8 N. Y. Supp. 957, it was held that the plaintiff was not the procuring cause of the sale where the sale was made direct to another, acting for the plaintiff's customer, in the ignorance of the owner,

the defendant. The court does not refer to the New York cases holding that the broker's right to commission is not affected by the owner's ignorance that he is the producing cause of the sale. See, for example, Lloyd v. Matthews (1872) 51 N. Y. 124; Sussdorff v. Schmidt (1873) 55 N. Y. 321. In Stone v. Kreis (1916) 202 Ill. App. 43, after the plaintiffs had for two years endeavored to induce H. to purchase the property, H. and the defendant informed the plaintiffs that they would not negotiate further; thereafter the property was sold to W., who conveyed to H. It was held error to refuse to instruct the jury "that if they believed from the evidence that the defendant acted in good faith at the time he sold the property in question to Woodward, and did not know that Woodward was purchasing said property for the benefit of Joseph Hock, their verdict should be for defendant." The court said: "Where, as in the present case, there is evidence tending to show abandonment of negotiations with the broker's customer, and entry upon negotiations with another party, apparently in his own interest, but in fact as the secret representative of plaintiffs' customer, of which defendant was ignorant, and that defendant, on due inquiry, was led to believe that he was dealing with an entirely new party and was not to pay commissions, and was thereby induced to sell at such lower price, we think the element of good faith is material. It would not only seem unjust, if he acted in good faith in the transaction, that he should be mulcted for damages in the form of commissions because of bad faith and deceit practised upon him by plaintiffs' customer, but to present the question whether, so far as the operating influences on defendant are concerned, plaintiffs, under such circumstances, could be said to be the procuring cause of the sale." The court does not refer to Adams v. Decker (1899) 34 Ill. App. 20, holding that it was wholly unimportant whether the owner knew that his purchaser was sent by the broker or not.

In Baumgartl v. Hoyne (1894) 54

Ill. App. 496, agents employed the plaintiff to sell property, who saw several persons about it, one of whom spoke to R., who eventually bought the property and resold it at an advance to a syndicate composed of himself and several others, some of whom had been approached at first by the plaintiff. It was held that the plaintiff was not entitled to a commission, as he was not the proximate cause of the sale.

Gormley v. Dangel (1913) 214 Mass. 5, 100 N. E. 1084, is sufficiently set out in the reported case (RITCH v. ROBERTSON, ante, 81).

In Steidl v. McClymonds (1903) 90 Minn. 205, 95 N. W. 906, W., interested by the plaintiff, a broker, in pi perty of the defendant in a distant city, sent C. to such city, who met the defendant's manager, and took contract and deed in his own name, and conveyed the property to W. It was held that the knowledge of the manager that C. was acting for W. was the knowledge of the defendant. [Minnesota does not support the general rule that ignorance of the owner that the broker procures the purchaser is no defense to the broker's claim for commission. See Quist v. Goodfellow (1906) 99 Minn. 509, 8 L.R.A. (N.S.) 153, 110 N. W. 65, 9 Ann. Cas. 431.]

It will be seen that the two following cases are directly opposed to the reported case (RITCH v. ROBERTSON):

In Glade v. Eastern Illinois Min. Co. (1908) 129 Mo. App. 443, 107 S. W. 1002, it was held that if one interested by the broker procures a third person to buy the defendant's property for him, the defendant is liable for the broker's commission, even though he did not know that the person interested by the broker was interested in the purchase.

In Schultz v. Zelman (1908) Tex. Civ. App. —, 111 S. W. 776, it was held that the plaintiff was entitled to compensation where the defendant placed the property with several agents for sale, including the plaintiff, who showed it to D. in the defendant's presence, and it was agreed between the plaintiff and the defendant that the defendant should negotiate di

rectly with D., but he was not able to see him; and D. bought the property through another broker, who told the defendant he was not acting for D., and the defendant did not discover the contrary until after signing the contract.

Where the plaintiffs, employed by the defendant's husband to sell her property, negotiated with the vice president of a bank, and the husband, having notice thereof, sold the property to such vice president for the bank, the conveyance being made to the cashier, the bank paying the money, the plaintiffs were held entitled to their commissions. Barnett v. Gluting (1891) 3 Ind. App. 415, 29 N. E. 154. The court said: "The fact that the conveyance was made to some person other than the real purchaser, if it was the same transaction, and resulted in a sale of the property of which the broker was the procuring cause, would not debar the latter from recovering his commission."

An agreement in substance that the broker was to have his commission if he sold or named a customer who bought, leased, or got full control of the property within a time mentioned, was fulfilled by the broker, where he named as probable customers a railroad company, and a coal company controlled by the railroad company, and the person who was secretary and treasurer of both companies bought the property and deeded it to the coal company within the time specified. Langdon v. Taylor (1910) 103 C. C. A. 531, 180 Fed. 385.

A colorable sale to a third party in order to deprive the broker of his com

mission will not have that result. Randup v. Schroeder (1898) 22 Misc. 367, 49 N. Y. Supp. 290.

"An agent cannot be deprived of his commission merely because the actual purchaser takes title in another's name." Konner v. Anderson (1900) 32 Misc. 511, 66 N. Y. Supp. 338.

In Bogart v. Williams (1895) - Tex. Civ. App. -, 31 S. W. 434, the plaintiffs procured a purchaser who only wished part of the property, and induced their employee to take the other part, with the knowledge of the owner, the defendant. Thereafter the defendant persuaded such employee to take a deed for the whole, and then to convey to the customer, but it was held that he could not in this way deprive the plaintiffs of their commission.

The following case, while not strictly in point on the facts, may be here referred to:

Where an agent has been employed to procure a purchaser of real estate at a price satisfactory to the owner, for a stated commission, and the agent introduces to the owner a prospective purchaser, who takes an option and allows it to be canceled, but the agent continues to discuss the matter with the person so introduced, who subsequently, with a partner, purchases the property by negotiations with the brother of the owner, in which the agent took no part, the agent, having introduced and continued to interest the person who, with his partner, did eventually buy, is entitled to his commission as agreed. Cumberland Sav. & T. Co. v. McGriff (1911) 61 Fla. 159, 54 So. 265. B. B. B.

Headnotes by OWEN, Ch. J.

- disbarment

control over referee. 2. A referee in a disbarment proceeding is an officer of the court, and the court has full authority to supervise and control his report by setting it aside, or confirming or modifying it as the facts and the law require.

[See 23 R. C. L. 300.] -effect of report of referee.

3. The report of a referee appointed to take evidence and report his findings of fact and conclusions of law in a disbarment proceeding is not conclusive as to either the findings of fact or the conclusions of law, but is accorded every reasonable presumption of being correct. The burden is on the party attacking it, but it is to be freely set aside by the court if found to be incorrect.

[See 23 R. C. L. 302.]

Mr. W. S. Pendleton, relator. Mr. Frank Dale, prosecutor. Messrs. E. R. Hastings and S. W. Hayes, for respondent:

Advances in the disbursement of the Enos Nichols estate by its representative for the benefit of Harriet Nichols Cook and her estate could be made before the final distribution of the estate.

18 Cyc. 615; Re Moore, 96 Cal. 522, 31 Pac. 584.

The supreme court had the inherent power to appoint a referee to take the evidence and report to the court with his findings of fact and conclusions of law, but such report would not be conclusive upon the court as to either.

Grove v. Haskell, 31 Okla. 77, 116 Pac. 805; Krapp v. Aderholt, 42 Kan. 247, 21 Pac. 1063; Humble v. German Alliance Ins. Co. 85 Kan. 145, 116 Pac. 472, Ann. Cas. 1912D, 630.

The evidence in support of the charges on which it is sought to disbar an attorney must satisfy the court to a reasonable certainty that the charges

are true, to warrant a judgment of disbarment.

People ex rel. Shufeldt v. Barker, 56 Ill. 299; Re Parsons, 35 Mont. 478, 90 Pac. 163; People ex rel. Healy v. Thornton, 228 Ill. 42, 81 N. E. 793; Re Newby, 82 Neb. 235, 117 N. W. 691; State Bar Commission ex rel. Williams v. Sullivan, 35 Okla. 745, L.R.A.1915D, 1218, 131 Pac. 703; Re Sitton, Okla. 177 Pac. 555..

-

Owen, Ch. J., delivered the opinion of the court:

This is an original action brought on motion of the Bar Commission, based on charges filed by W. S. Pendleton, hereinafter referred to as relator, for disbarment of F. H. Reily, a member of the bar of Pottawatomie county. Honorable James R. Tolbert of Hobart was appointed referee to take testimony and report his findings of fact and conclusions of law. He reported specific findings as to three counts

Prior

183 Pac. 728.)

Respondent was attorney for one Harriet Nichols Cook, of New Jersey, claimed to be sole heir at law of Enos Nichols, deceased, who died in Pottawatomie county in December, 1911. He was employed as associate counsel under the direction of J. Warren Davis of New Jersey. Harriet Nichols Cook died, and J. Warren Davis was appointed executor of her estate, respondent continuing under his direction to represent the estate as a beneficiary of the Enos Nichols estate. to her death respondent secured a loan of $5,000 for her, guaranteeing payment himself by separate instrument. Lydick and Eggerman, attorneys of Shawnee, held an assignment from Harriet Nichols Cook of $30,000 of her interest in the Enos Nichols estate, claiming that amount as attorneys' fees. Respondent brought suit to cancel this assignment. A compromise was effected by the terms of which Lydick and Eggerman were to receive $15,000. But by agreement judgment was entered in their favor for $20,000, and $5,000 of this amount was paid to respondent, for which he gave receipt in the name of Harriet Nichols Cook estate by himself as attorney. This transaction was at the time unknown to the executor, but when explained to him a few days later was entirely satisfactory and ratified. Respondent deposited this $5,000 to his own account, and retained same with the consent of his client until September, 1917, when he returned the money to the executor. In explanation of this transaction respondent shows the money was secured to protect him on his guaranty of the $5,000 loan of Harriet Nichols Cook, and his client agreed he might keep the money until he had been relieved of this personal obligation. The uncontradicted evidence shows he returned the money when the first demand was made. The referee

found that respondent wrongfully converted the $5,000 to his own use with the attempt to deprive the estate of same, and was therefore guilty of the crime of embezzlement. We do not approve the method used by respondent in obtaining this money, and we are not unmindful that irregularities of this character sometimes lead to grave consequences. Yet we do not find that the transaction, as explained by respondent, shows any intent on his part to defraud, or that the estate was to any extent defrauded.

The second count alleges fraud and irregularities in the collection of an expense account of $1,835, from the administrator of the Enos Nichols estate, and made a charge against the estate of Harriet Nichols Cook. This account was for money advanced by respondent for court costs and expense of taking depositions in various parts of the United States, representing the Harriet Nichols Cook estate. The account was submitted to James Mercer Davis, attorney for J. Warren Davis, who approved the same, and his action was later ratified by J. Warren Davis as executor. It does not appear the account was either itemized or sworn to, but the amount was recognized as correct, and was paid as a proper claim against the estate of Harriet Nichols Cook as an advancement out of the Enos Nichols estate. Respondent later prepared the report for the executor, which was filed with the county court of of Pottawatomie county, showing the expenditures of this $1,835 item.

The referee found that respondent acted arbitrarily, and had been grossly negligent and guilty of conduct unbecoming a lawyer in this transaction, although not prompted by a bad or criminal motive. There was no question as to the correctness of the account, and while good business methods and that degree of care due the handling of accounts by lawyers for their clients would require the account be itemized and