dissenting in part, and concurring in the conclusion.
The majority opinion finds 320 acres of land bought by the plaintiff and defendant for $8,000, and the title taken in the name of the defendant, Kloke, who was a bank president, and who furnished the money under an agreement that he was to have one-half of the net profits when the property should be sold. The plaintiff formed a partnership in the real estate business with one Engler under the name of Tate & Engler, and after he had made the arrangement with Kloke. Tate & Engler undertook to sell imrt of the land, the N. E. and plaintiff contends it was agreed between him and the plaintiff that Tate & Engler might sell this particular quarter, and for their services for selling it were to have whatever they could obtain over and above $5,450. The defendant testified that he consented the land might be sold for $5,450, if that was the best price that could be obtained for it. The plaintiff, Tate, and Engler, his partner, testified that no such an agreement was made.- Tate & Engler found a *388purchaser for this N E. \ at $6,400. a Mr. Heyn, and a writing was signed by the defendant, in which he acknowledged the receipt from Tate & Engler of $500 as part payment on the purchase price at $5,450, and containing details of the items of the proposed payment of the remainder. The defendant made the deed to Tate & Engler after he had full information touching the matter in dispute. The majority opinion does not find any fraud in the representations of the plaintiff made to the defendant, Kloke, concerning the price for which this quarter was agreed to be sold, but finds that the sale to Heyn' failed, because of the misunderstanding, and says: “The conflict in their testimony does not appear to be in regard to the facts, nor in regard to the language used by them in their various talks about the matter. Each appears to have misunderstood the other’s meaning, and this led to their subsequent difficulty. It does not appear to' us to be a case of fraud or false swearing.” And at the same time the majority opinion says this: “We cannot now say that the deed and the memorandum, in pursuance of Avhich the deed was given to Tate & Engler, Avere procured by fraud. This memorandum and deed are consistent Avith the plaintiff’s understanding of their agreement, and are wholly inconsistent with the defendant’s claim.”
The majority opinion seems to me to be in disregard of the evidence, so far as that evidence relates to the N. E. and the contention of the plaintiff and defendant concerning the same; but as the sale of that quarter failed, and therefore no actual profit was made upon it, and as it cannot with certainty be said that an improper division of the profits on the other quarter was made by the opinion, it follows that no one may say that the conclusion reached is wrong, I dissent from so much of the opinion as discusses the contention between the plaintiff and defendant and refuses to consider that the plaintiff is charged with fraud, or that there is any evidence touching that fact; but if there was fraud there avus no result from it, because there was no sale of the N. E. J and there *389could have been no profit realized from it. I therefore concur in the conclusion.