(dissenting). — It appears from tbe record that Pbilo T. Earnswortb was tbe purchaser of tbe mining property described in tbe deed placed in escrow witb tbe plaintiff, and that said deed in terms conveyed said mining property to bim. In bis answer be alleged that tbe “deed was to be beld by tbe plaintiff, ~W. 0. Hall, and delivered to bim on tbe fourth day of November, 1899, upon tbe complete and final payment of tbe purchase price of said property.” Until the final payment was made, be was not, by tbe terms of tbe written contract, subject to wbicb tbe plaintiff beld tbe deed, entitled to have tbe same delivered to bim. He made tbe payments provided for in said written contract, and when made, and tbe deed was delivered, it is clear that tbe grantors became tbe^ owners of all of tbe money so paid to tbe plaintiffs, if proof of tbe contemporaneous verbal agreement between Farnsworth and McNally and Harrington was admissible. Farnsworth admits, as shown by tbe quotation of bis answer, hereinbefore made, that under tbe written contract be was to pay to tbe bolder of tbe deed in escrow the full purchase price of tbe property. Tbe contemporaneous verbal agreement varies tbe written contract in that respect, and therefore it was error to admit evidence in proof of it. Again; as Farnsworth was tbe purchaser and grantee of tbe property, tbe allowance of a commission is an anomaly. “Tbe term 'commission’ legally imports a sum allowed as compensation to a servant, factor, or agent who manages tbe affairs of others in recompense for bis services.” 6 Am. and Eng. Enc. Law (2 Ed.), 228; Bouv. Law Diet.. 361.