1. The plaintiff is alone in his testimony about the terms of the alleged escrow agreement. It is not pretended that this was in writing. He is opposed by the testimony of Cooper and Brown, who flatly deny that the Kangus place was included in the arrangement. They contend that the escrow agreement was to the effect that the plaintiff should have in exchange for the property described in the complaint a certain apartment house in Portland, and that the deed for the latter property was made and tendered to him and by him refused. The suit seems to be a companion case of Rohrbacher v. Strain, 95 Or. 1 (186 Pac. 583), in which Mr. Justice Bennett considered the testimony, reaching the conclusion that as the trial court had the witnesses before it and heard their testimony, it had a much better opportunity than this court to judge of their truthfulness, and held that we were not justified in disturbing the findings. In the contradictory state of the testimony in the instant case, we feel bound by the doctrine there announced as to the question of fact.
2. On the question of law, the case is governed in principle by Harth v. Pollock, 97 Or. 663 (193 Pac. 202). There, the land owner deposited with his agent a deed to property, leaving the name of the grantee blank, to be filled in by the agent. The latter fraudulently wrote in his own name and procured a loan from the defendant Pollock, mortgaging the property in security therefor. The principle decided in that case was that where a property owner places it in the power of his own agent to defraud an innocent purchaser or encumbrancer, the law will protect the latter. In this case, conceding that Cooper violated the terms of the escrow agreement, *189it is not even intimated in the complaint that the defendant grantee or mortgagee had any knowledge of the terms of that agreement or of its existence, or of the alleged disobedience of Cooper. They found Cooper equipped with the plaintiff’s deed, confessedly with the assent and authority of the plaintiff. They both acted innocently, so far as either allegation or proof is concerned, the one taking and the other relying on delivery of the deed as authorized and regular. In such case, as the situation was brought about by the action of the plaintiff and without participation in or knowledge by the defendants of the alleged fraud of Cooper, they must be protected, and the loss, if any, must be adjusted between the plaintiff and his own agent, Cooper.
The decree is affirmed and the plaintiff’s suit dismissed. Affirmed. Suit Dismissed.
McBride, Benson and Harris, JJ., concur.