I concur with Mr. Justice O’Brien on the ground that the plaintiffs acted throughout as counsel for Mr. Harbeck and not for the defendants, and that the agreement of the defendants to pay Mr. Harbeck’s lawyer’s fees for examining the title, was part of the contract .for the loan, and not an independent contract between the defendants and the plaintiffs, under which the defendants could be liable for the amount agreed upon as the plaintiffs’ fees, irrespective of the completion of the contract between the defendants and Harbeck. Brown, one of the plaintiffs, testified: “ I have been Mr. Harbeck’s counsel for a number of years, and I do the searching of titles for him when he loans money on real estate, whenever parties who are to take the loan request me to do it, and agree to pay my fee for it. Mr. Harbeck sends the borrowers to me and tells them to make any arrangements that they can make as regards the payment and the charge for my services. I act as attorney and counsel for Mr. Har•beck in searching the title and I protect his interest. Q. So that he was the party yon represented in this transaction? A. Ves, I did. Q. And the only arrangement that was made between you and Mr. Washburn was an arrangement as to the amount that was to be allowed for searching the title ? A. And the agreement to pay my *242fees.” It thus appears that the plaintiffs were not employed by the defendants; did not act for them, but did act for Hr. Harbeck as his counsel in searching the title. The agreement between the plaintiffs and the defendants was that the defendants were to pay the plaintiffs’ fees for searching the title, not as an independent -employment, but while they were acting as counsel for Harbeck and representing him. The payment of the plaintiffs’ fees by the defendants was, therefore, a part of the contract to make the loan, and the defendants were liable only in case Harbeck performed his agreement. I think, also, that Harbeck’s refusal to perform his agreement without the insertion of a receiver’s clause in the mortgage, when it was not a part of the original agreement for making a loan that such receiver’s clause should be inserted in the mortgage, was a breach of his agreement, and that the failure to make the loan was, therefore, by reason of a refusal on the part of Harbeck. to perform, and not a refusal of the defendants. The loan not having been made in consequence of a failure on the part of Harbeck to perform Ms agreement, the defendants were released from any •obligation to perform the contract made by them; and, as part of that contract was to pay Hafbeck’s counsel for examining the title, that being no independent liability that the defendants incurred therein, were not liable.
Judgment reversed, new trial granted, costs to appellants to abide •event.