Dissenting. — In the discussion of this question I shall not consider that branch of the case which is founded upon the law which requires the vendee not to mislead the vendor. While I have been unable to find any authorities that hold that the words “ore body” are synonymous with or the equivalent of the words “lode,” “vein,” or “ledge,” and therefore have some doubt as to whether the finding that no lode or vein of ore was known, or had been discovered, is responsive to the allegation that the defendant had discovered a lode or body of ore, yet I desire to pass by that matter, which may, perhaps, be more technical than practical, and consider that portion of the action which has its foundation in the law of agency.
The complaint alleges, among other things, that said Porter (after entering the employment of plaintiffs) surreptitiously, fraudulently, and collusively, for a consideration, to wit, $1,000, paid to him by the defendant, in violation of his said employment of these plaintiffs, and in fraud of their rights, entered into the emplojunent of the defendant, and undertook and agreed to assist him (the defendant) in obtaining the Eureka mining claims from these plaintiffs, by purchase at a price of $2,200, or a price greatly below its real value, and that by reason of said *137false, fraudulent, and collusive acts of Porter, and the misrepresentations and concealments of defendant, the plaintiffs were induced to part with the property in question.
I presume it will be admitted that if this allegation is true the plaintiffs are entitled to the relief demanded in the complaint. This seems to me to be the more comprehensive and the most important branch of the case. The large ore body has, in the progress of the trial of the case, as is usual, attracted the most attention; but the gravamen of the action, it seems to me, lies in this charge of betrayed confidence, which may be true, even if, as a matter of fact, no ore vein had ever existed within the mine. This branch of the case makes the relation of Mr. Porter to the plaintiffs and defendant a vital issue. That issue is, Was he an agent of plaintiffs? If not an agent, was he a principal contracting with the plaintiffs for the purchasing the mine? If not an agent of plaintiffs, was he an agent of defendant? - If not an agent of defendant, was he a party in interest with the defendant? If not, was he then the agent of both plaintiffs and defendant? And, if so, was he a factor, broker, or middleman? The law of the case is different in the several relations, and cannot be determined until this relation is adjudicated. The plaintiffs have a right to demand a finding of fact determining this matter. I am unable to find such a one in the decision of the case by the court below.
The second alleged finding of facts details a conversation between plaintiffs and Porter, whereby a proposition of employment is tendered by plaintiffs and responded to by Porter, and closes with the finding as a fact “that Porter was not invested with any authority to effectuate a sale or bind the plaintiffs or the title to the mine.” The vital question, however — Did he have any authority, and if so, what was it ? — is not determined.
The fifth alleged finding of facts states that plaintiffs informed Porter that they would sell the mine at $2,000, but that out of said sum they could pay no commission; but there is no finding, there or elsewhere, as to whether Porter agreed to act as their agent in selling it at that price, or whether he agreed to buy it.
The findings are so indefinite that different minds arrive at different conclusions as to what was the relation of the parties.
*138Again, looking into the evidence for the purpose of ascertaining whether the finding that Porter was not invested with authority to sell or to bind the mine; it seems that all the evidence on that point is directly at variance with the finding. In determining the authority of Porter, on the theory that he was employed by plaintiffs, we must look at what he was employed to do, and not what he did under the employment. Synnott, one of the plaintiffs, testified: “I told Porter if he would sell the Eureka for $2,500 we would give him ten per cent. Porter replied, if he got through trying to sell the Homestake he would try and sell ours.” Again, Synnott says: “I told him I would give ten per cent if he sold the mine,” etc. Again, Porter himself says, “Synnott and Welch gave me a sort of verbal bond if I would sell the property,” etc. He adds, “I made a sale to Wall.” On page 64 of Transcript Porter says, “They told me if I could sell for them and bring them $2,000, that was all they asked.” On page 63 he says: “I had authority to sell the mine from about the middle of June. I made sale of it on the 5th of July.” It is claimed that it appears from what he did that he had no authority to sell. But the charge is that he did not do as he had agreed to do, and it would be a dangerous practice, if, on such a charge, we should determine what he was authorized to do by what he actually did. I am unable to see that this finding of fact is supported by the evidence; it seems rather to be directly contrary to the evidence of the contracting parties.
If I understand the opinion of the majority of the court, just read, it is based upon the theory that the findings are sufficient to show that Mr. Porter had a contract or verbal agreement with plaintiffs whereby he had what is sometimes called an option to sell, and that, under said authority, he had a right to sell and to appropriate to himself all that he might get over $2,000. The words of the parties are that he is to sell. Nothing is said of an option. Porter, says that he called it a verbal bond. I am unable so to construe their contract. The stipulation that he was to have all over $2,000 if he should sell (if such there was) was simply the measure of his compensation. It could not alter his relations to the plaintiffs, or his obligations to them. Assuming the findings to show such a contract, I am unable to see *139that Porter stood in any other relation than agent of plaintiffs. If I understand the nature of th'e contract, often made by miners, which is referred to as bonding a mine, it is an agreement between two principals, to the effect that one will sell to the other at a stipulated price within a given time. In Finerty v. Fritz, 1 Morr. Min. Rep. 439, cited in the opinion of the court, such a contract is held to be a sale. The agreement between plaintiffs was not such a bonding, for Porter himself testifies that, “I never made a bargain to buy the property or an arrangement to buy it.” On page 18 of Transcript he says: “They or I could have made a sale at any time.” If words are to be interpreted according to their ordinary import, Porter was employed to assist plaintiffs to sell the mine, first, at a compensation of ten per cent on the purchase price, if sold; afterward, desiring to increase his compensation, he told the plaintiffs he could only sell the mine for $1,800. This was not true. He, in fact, did sell it for $3,200. He, however, as Syn-nott testifies, left them with the impression that he could not do better up to the time of the sale. The plaintiffs did, indeed, get $2,200 in consequence of a third party, Gilman, offering them that amount. By chance, they protected themselves to that amount against the duplicity of their own employee. Through the representation of Porter that he could not sell for more than $1,800, and being greatly in need of money, the plaintiffs were induced to agree to take $2,000. This agreement, however, did not relieve Porter of his obligation as an agent to deal honestly with his principals, and give them all the knowledge that he possessed concerning’ the value of the mine. He testifies that he concealed the find for the reason that had they known of it they would not have sold for that price.
Again, it is claimed that if the findings show employment of Porter by plaintiffs, he was simply a middleman to bring the parties together, and that he could lawfully take pay from either. I understand the authorities to be that, while a middleman may sometimes take pay from both seller and purchaser, he must always deal with the utmost fairness with each. An analysis of the term affords the best explanation of the legal obligations of the parties: a man standing in the middle between two; in the center. “Center” is defined to be a point equally distant *140from the extremities. The middleman must be and remain equally removed in interest from the two for whom he contracts. If he varies from this, even in the estimation of a hair, and gives to one knowledge or advantage which he withholds from the other, he loses his position as a middleman, and in the realm of equity, the law will hold - him responsible for the position which he really assumes, rather than that which he advertises to occupy. Can it be said that Mr. Porter stands equidistant between the plaintiffs and defendant, when he testifies that “I did not inform the plaintiffs of the fact of my finding ore? I reported it to Colonel Wall.” And, again, “I told Colonel Wall I wanted one-fourth of the mine,” and that he actually received $1,000 in lieu of the quarter interest therein.
In Walker v. Osgood, 98 Mass, 351, 93 Am. Dec. 168, and note, Wells, J., says: “Plaintiff’s employment as a broker, even if he had no authority to bind his principal, and was intrusted -with no discretion in fixing the terms of exchange, and his only service was to bring the parties together, he was bound to perform that service in the interest of the party who employed him.” To a certain extent, and for certain purposes, by the understanding and usage of business and the nature of his employment, a broker is authorized to act for both parties; but what he does in any relation he does as an indifferent person, and not in the interest of either party. It is claimed on the part of the appellants that there is no finding as to the fraud of defendant or his collusion with Porter.
In Harris v. Burns, 51 Cal. 528, the court say if the trial court fail to find on an issue of fraud raised, the judgment will be reversed.
In Le Clert v. Oullahan, 52 Cal. 254, the court says: “Upon the issue of fraud thus tendered the findings are entirely silent. The cause is not, therefore, in a condition to be decided.” In the ease at bar it is claimed that if there is no direct finding as to fraud such probative facts- are found as necessarily determine the question of fraud. If this is true, it must be that it does so by alleging all the facts, circumstances, and acts of the parties connected with the transaction, in any way bearing upon the question of fraud. But an analysis of the findings will show that, while they set out as facts the conversation of the *141parties as to the contract of the parties, the evidence of Porter bearing on this question is entirely omitted. He says: “I did not inform plaintiffs about the finding of the ore, for the reason that I did not think it to be to my interest. I was working for my own interest, and not theirs.” Also the evidence of Mr. Synnott: “Porter told ns the most he could get was $1,800. That was the understanding between us until the sale.”
■ If Porter was in the employment of plaintiffs he had no right to work for his own interest and not theirs. If there was fraud, it arose from this very worldng for his own interest to the injury of his employers; and if defendant was in collusion with this working for his own interest instead of his employers’, the fraud attaches to him also. Hence the defect in the findings upon the question of fraud.
In Norris v. Tayloe, 49 Ill. If, 95 Am. Dec. 568, and reported in 1 Morr. Min. Eep. 383, is a ease so nearly like the one at bar that it seems to me to determine this controversy, provided the findings should establish the facts. The principles involved in this case are fully discussed. Whether they do apply, or what principles of law apply to the case at bar, can only be determined when the issues of fact in the case are adjudicated. The question of the agency of Porter, the question of fraud of Porter, and the collusion of the defendant in such fraud, if any existed, are the vital issues upon that branch of the ease which I am discussing. I am unable to understand the findings of the court below as determining these issues, and I am therefore obliged to dissent from the opinion of the court as just read.