dissenting. When Harden, Sr., appointed Harden, Jr., his agent to procure the option from Banks, Harden, Jr., stood squarely in the shoes of Harden, Sr., in that entire transaction, and the Sr. is bound by Jr.’s acts and charged with his knowledge. The testimony of Banks that he told Jr. that he had given Gordon a prior option on the same land is undisputed and, hence, stands as the fact. The writing which provides that if Banks does not convey the land when Harden chooses to exercise the option, he can, in lieu thereof, refund to him all money received, confirms the truth of Banks’ testimony. The further sentence in the instrument upon which the majority seize is in harmony with the first. It simply means that the option remains valid and enforceable despite the methods of fulfillment either by the land or . refund of the money. It is significant that Jr., who could have contradicted Banks’ testimony, if untrue, and the only person who could do so, was not produced by Harden, Sr., as a witness. The result of this judgment is to prevent an honest man, who disclosed all facts and who acted to honor his obligation from doing so for no better reason than to reward Harden for knowingly procuring and causing Banks to breach his contract with Gordon. There are no clean hands on Harden under these undisputed facts, and he is entitled to no relief in equity.
The undisputed, but corroborated, evidence shows that Harden knew of the Gordon option, assented to allow his to be subject thereto, else there can be found no sensible explanation of the separate document he executed which provided for a refund of his money if the land was not conveyed. The motion for judgment notwithstanding the verdict was authorized by the controlling undisputed evidence, and it was error to overrule it.