Former opinion adhered to on rehearing September 9, 1919.
On Rehearing.
(183 Pac. 756.)
BENSON, J.For a general statement of the facts of this case reference is made to the former opinion of this court herein: Runnells v. Leffel et al., ante, p. 342 (176 Pac. 802).
The vital issue, as there disclosed by the complaint, and denied by the answer, is this: Was the conveyance to Mrs. Higinbotham, executed on August 6, 1917, made to her in consummation of the original contract between Mays and Mr. Higinbotham, and at the request of the latter and Leffel, or was it a new and independent deal? The evidence of all the parties who participated in the negotiations of July 7, 1917, tends to establish the following facts; that Mays and Leffel had, for some time been importuning Higinbotham to make some payment upon his overdue notes, and without success. On the morning of July 7th, Mays notified the delinquent vendee that he must either make a substantial payment or that ejectment *352proceedings would immediately follow. Higinbotham replied that he was unable to make payment, and proposed to give up the executory contract and possession of the land, in exchange for his notes. Mays accepted this offer, and upon receiving the written contract from Higinbotham, returned to the latter his unpaid notes, and shortly thereafter, notified Leffel of what had occurred. Leffel then had a conversation with Higinbotham and his wife, in which she made a definite offer to buy the land herself for $39,000. This offer was accepted by Mays, and on August 7th, Mays and wife, Higinbotham and wife and Leffel met at' the law office of Mr. Slater, in La Grande, at which time Mrs. Higinbotham paid Mays $17,000 in cash, and received a deed for the land in her own name, executing to Mays a mortgage in the sum of $22,000, for the remainder of the purchase price. She testifies, very positively, that her husband did not furnish a dollar of the money which she paid for the land and has no interest therein. ' She says that Mays and Leffel had importuned her frequently to help her husband in making payments under his contract, and that she had always refused to do so, and that her purchase of the property was' entirely independent of any prior negotiations between her husband and Mays and Leffel.
The plaintiff does not undertake to meet this testimony with substantive evidence of any other character, but contends that since Mays always urged that his net price for the land was $39,000, and that he had received that amount, he must necessarily credit Mrs. Higinbotham with the $9,000 in payments which had been forfeited by her husband, and that her relationship to the former vendee, and the circumstances surrounding the transaction, indicate that the second sale, to the wife, was a deceitful subterfuge, perpe*353trated by the several parties thereto, in order to prevent the plaintiff from receiving Ms share of the commission earned by negotiating the original sale. If this contention be the correct one, then the conduct of Leffel, Mays, and the Higinbothams amounted to a collusive fraud; but the complaint does not plead fraud of any kind, and no rule of pleading is more firmly established than that to be available as a ground of recovery or defense, fraud must be pleaded.
It follows that we must adhere to our former opinion. FORMER OPINION APPROVED.