¶1(dissenting).
¶2From the judgment of affirmance in this case I respectfully dissent. The second amended complaint upon which the action was tried in the court below, and upon which recovery was there had by the plaintiff, alleges, among other things:
¶3That on or about September 28, 1912, the defendants to the action, through their authorized agent in writing, one H. H. Springsteen, entered into an oral contract with the plaintiff Lewis, by which he was employed “as their sole agent or broker in negotiating for the optional sale of certain placer mining claims (specifically described) owned by them.”
¶4That thereafter, and on or about the-day of June, 1913, “in confirmation of said oral agreement and to evidence the terms thereof, the plaintiff and defendants, by and through their said agent, signed, executed, and delivered a written contract, a copy of which is attached hereto and made a part hereof and marked ‘Exhibit A/ which said contract was by mutual consent dated as of September 28, 1912, the date of the original agreement aforesaid.”
¶5In view of those express allegations of the complaint, it is manifest that we must look to the said exhibit to see what the contract between the plaintiff and the defendants was, and which contract must, of course, govern the right? and obligations of the respective parties thereto.
¶6Omitting the description of the property, consisting of mining claims in the Cape Nome mining district of Alaska, the written contract is as follows:
¶7“That W. L. Springsteen and Ernest Hester have this day placed with S. L. Lewis, of Nome, Alaska, as their sole agent, for sale, in consideration of the said S. L. Lewis efforts to sell the same the following described placer mining claims. …
¶8“The price for said three mining claims to be twenty-three thousand ($23,000) dollars. The said W. L. Springsteen and Ernest Hester hereby authorize the said S. L. Lewis to sell said named property to any purchaser he may desire, and the said S. L. Lewis, to whom the exclusive right of making this sale is given, shall retain and receive for his efforts in making a deal, such sum or sums of mon*810ey as he may get over and above said stipulated sum of twenty-three thousand dollars, but he shall not be entitled to any other commission in the event of making a sale. The said W. L. Springsteen and Ernest Hester to receive for their above-named property the net amount of twenty-three thousand dollars, and the said S. L. Lewis to receive for his share in making a deal, all money over and above said twenty-three thousand dollars, for which the property is sold.
¶9“It is hereby agreed that such amount as may be due the said S. L. Lewis shall be paid out of the first payment made on the sale of said property, and in the event of purchaser not making final payments and the sale not being accomplished, said S. L. Lewis agrees to pay half of the money so received as his share of the profits of the sale to said W. L. Springsteen and Ernest Hester.”
¶10The defendants to the action, who are plaintiffs in error here, contend that the powers of attorney under which H. H. Springsteen executed on their behalf the contract with Lewis were not broad enough in their scope to confer that power upon him; but I assume, for the purpose of our decision, that they were. Under that assumption, the plaintiffs in error authorized the defendant in error to sell the property and to retain for his services in so doing all he might get therefor over and above $23,000, which sum of money the plaintiffs in error should receive for the property; it being expressly declared that the agent (Lewis) should “not be entitled to any other commission in the event of making a sale,” and it being further expressly agreed between the respective parties: “That such amount as may be due the said S. L. Lewis shall be paid out of the first payment made on the sale of said property, and in the event of purchaser not making final payments and the sale not being accomplished, said S. L. Lewis agrees to pay half of the money so received'as his share of the profits of the sale to said W. L. Springsteen and Ernest Hester.”
¶11It is conceded that the optional purchaser secured by Lewis — one Greenberg — paid only $5,000 thereon, and, after one extension of the option, abandoned it. It was for one-half of the $5,000 so paid that Lewis brought the suit.
¶12*811It is, I think, obvious from the terms of the contract that he is entitled to no part of that money: First, because it is expressly declared thereby that “he shall not be entitled to any other commission in the event of making a sale” than such sum or sums as he should get over and above the $23,000 that were to go to the owners of the property therefor; and, secondly, because of the concluding clause of the contract above quoted, in these words: “In the event of purchaser not making final payments and the sale not being accomplished, said S. L. Lewis agrees to pay half of the money so received as his share of the profits of the sale to said W. L. Springsteen and Ernest Hester.”
¶13If that clause can be construed to mean anything, it surely cannot be held to impose any obligation upon the owners of the property to pay him any portion of the $5,000.
¶14Moreover, the testimony of both Lewis and H. H. Springsteen clearly shows that they combined to perpetrate such a gross fraud upon the owners of the property as, in my opinion, no court of justice should sanction by its judgment. A few extracts from the testimony of each of them will be enough to show this to be true.
¶15H. H. Springsteen, being asked to state fully how it was that he signed the contract, answered: “Well, it was this way: This $5,000 had been paid, and I expected that there might be some trouble in my getting some commission out of it, and Mr. Lewis suggested he draw up some kind of an agreement, and so this agreement was signed as a friendly proposition. I should take one half of the money and the other half should be paid to the principals, to Springsteen and Hester, and I should keep one half of it. This money was to be given to him because I was the attorney in fact, and he was my friend and was going to give it back to me.
¶16“Q. And that was the reason this was signed? A. The only reason, so far as I know; I didn’t know at the time I signed the agreement that it was dated back; if I had, I wouldn’t have executed it at that time. I did not order Billy Moore or procure Billy Moore to antedate it and to put his certificate on there that it was signed September 28, 1912. I never discussed the matter with Billy Moore at all. I was only in his office about a minute. I presume Mr. Lewis procured Billy Moore to draw up this instrument; I *812didn’t. Mr. Lewis asked me to go over to Billy Moore’s and sign it, and when I went over there it was all drawn up and ready to sign. I was only in Billy Moore’s office once. … I never intended to rob anybody. I considered myself entitled to $2,500, and in order to get it I got Mr. Lewis to enter into this agreement to cover the money up in some way so the defendants couldn’t get it. Mr. Lewis didn’t have a dollar of it coming, and I never promised him one cent of it. I did not pay Billy Moore for drawing up that agreement; if Mr. Lewis did, that is up to him to tell why. I was the only one interested in that agreement, and it was drawn up for the sole purpose to try and get this money away from my own brother. That is a fact; yes, sir.
¶17“Q. And do you mean to tell the court and jury in negotiating this deal Mr. Lewis never had anything to do with it at all ? A. I never said so.' I don’t want them to understand that. I claim I negotiated the deal myself in the summer; the reason Mr. Lewis was going to see Mr. Greenberg abotit it was that he was helping me out simply as a friend. I never expected he would claim this money. … The reason I did not write to the defendants about the Greenberg option as soon as the money was deposited to their credit at the Miners’ & Merchants’ Bank was because I didn’t care to write to them. …
¶18“Q. Did Mr. Springsteen or Mr. Hester threaten to prosecute you for keeping this money, or trying to keep it? A. I don’t think they threatened to prosecute me; they were sore at the time, and I don’t blame them.”
¶19The defendant in error, plaintiff in the case (Lewis), while taking issue in his evidence with H. H. Springsteen regarding the agreement under which he undertook to and did procure Greenberg to take an option upon the property, and also regarding the circumstances under which he went to the office of Moore and signed the contract in the name of his principals with Lewis, being asked to state what was •said at the time of his first employment, answered: “I told Mr. Springsteen if he give me a chance to handle the ground I think I can handle it on an option to Greenberg; he had tried to handle it himself and he can’t do it. He said, ‘You know him- better, and perhaps you can get him to take an option,’ and he told me to go ahead and do it. I *813asked him what the price was, and he said $23,000 — $20,-000 for the owners and $3,000 for himself, and all I got above it, if I got anything above it, that would be mine. So that was all right, perfectly satisfied with that. Also, if I should get a payment I like to have my pay on the first payment, out of the first money.’ ‘All right,’ he said, ‘that is satisfactory. Furthermore if any payment is made and then dropped, what will we do then?’ Then we agreed to divide the money. He said, ‘You take half and I take half.’’’ (Italics mine.)
¶20The plaintiff, Lewis, also testified in effect that although, as representing the owners of the property, he asked Green-berg $35,000 for it, he, pending the negotiation, accepted from Greenberg an offer to pay him $2,500 if he could, get the price of the property reduced to $30,000.
¶21In my opinion the judgment should be reversed, and the case remanded to the court below, with directions to dismiss the action at the plaintiff’s cost.