This was a bill of interpleader brought to determine whether appellant or appellees are entitled to commissions on the sale of certain real estate. The case was before us at a previous term, when the decree of the court below giving the commissions to Kerfoot & Co. was reversed and the cause remanded, we being of opinion under the evidence that Kerfoot & Co. were not entitled to such commissions, and that Sherwood was. The case is reported in 9 Bradwell, 553, where the facts are sufficiently stated and need not be here repeated. After the case was remanded, the parties by agreement submitted it for another trial, upon the evidence taken at the former trial, with the addition of the testimony of Walter Mattocks, who was re-examined.
On the former trial Sherwood testified that he applied to Walter Mattocks, the managing clerk of Mattocks & Mason, agents and attorneys of the owner of the property, with whom he made an arrangement to act as broker in finding a purchaser, he to share commissions with Mattdcks & Mason, if he should find one; and that from thenceforth he was on the lookout for such purchaser.
Walter Mattocks testified at the former trial that he did not remember whether such an arrangement was made or not. Upon being called as a witness at the last trial, about a year subsequently, he testified that he did recollect that no arrangement was made with Sherwood to act as broker. This discrepancy necessarily detracts from the weight to be given to, his evidence; but if it be conceded that its eifect was to produce a fair conflict of evidence as between him and Sherwood and thereby to furnish no ground for disturbing the finding of the court below in that regard, the fact still remains that Mr. Mason, a wholly disinterested and credible witness, one of the principals for whom Walter Mattocks was acting* testifies that the contract was to share commissions with Kerfoot & Co. if they made the sale, and with Sherwood if he made it. This testimony is wholly uncontradicted and should, we think, be regarded as decisive of the case.
That Kerfoot & Co. did not find a purchaser, and that Sher-. wood did, and that he found him entirely independent of any information derived from Kerfoot. & Co. is proven beyond all reasonable doubt. To permit- Kerfoot & Co. to now come in and reap the fruits of Sherwood’s ’labors would be contrary to the plainest principles of equity and justice.
The decree of the court below will be reversed, and a decree rendered in this court in-favor of appellant for the three hundred and twelve dollars and fifty cents deposited in the court below, to abide the final determination of the suit, less six dollars costs allowed Mattocks & Mason.
Decree accordingly.