No. 13,072.

#### Hentzell *v.*Hildebrand et al.

(12 P. [2d] 343)

Decided May 23, 1932.

Mr. Horatio S. Ramsey, Mr. Harry G. Saunders, for plaintiff in error.

Mr. H. A. Hicks, Mr. H. A. Hicks, Jr., for defendants in error.

*In Department.*

Mr. Justice Butler

delivered the opinion of the court.

Henry Hildebrand and Anna M. Hildebrand obtained a judgment against Alfred A. Hentzell, canceling a promissory note and a deed of trust. Hentzell seeks a reversal of that judgment.

This is a controversy between the lender and the *92borrowers of money. Mitchell, a lawyer, was practically the sole owner of, and the agent for, a realty and investment company. From time to time Hentzell had dealings with Mitchell, lending money through him and purchasing secured notes fr'om him, and in each case he employed Mitchell as his attorney to examine the abstract of title and to see that the papers were properly drawn. As a result of the business transacted for Hentzell by Mitchell, the latter became indebted to the former in the sum of $1,200' for money entrusted by the former to the latter for the purpose of making a loan — -not the one involved in this suit. The Hildebrands, owners of certain land in Jefferson county, applied to Mitchell for a loan of $3,000 thereon. The land already was encumbered by what is referred to in the record as a federal loan, the balance due being approximately $1,800. Mitchell submitted the application to Hentzell, who told Mitchell that he (Hentzell) would make the loan provided the title was all right and that Mitchell would repay the $1,200 to Hentzell, or pay that amount to the Hildebrands as part of the loan. The Hildebrands knew nothing of this conversation or of Mitchell’s indebtedness to Hentzell. It was understood that Hentzell would not make the loan unless the federal loan was paid off, so as to make his loan a first encumbrance on the Hildebrand land. The federal loan was to be paid out of the $3,000 that Hentzell was to lend to the Hildebrands. Mitchell obtained from the Hildebrands their note for $3,000 and their deed of trust on the representation that it was necessary for him to have them in order to protect Hentzell in advancing the money to pay off the federal loan. For the purpose of paying off that loan, Hentzell gave Mitchell a check for $1,748, payable to the order of Mitchell. The trial court found that that amount was sufficient for that purpose. Mitchell cashed the check, but, instead of paying off the federal loan, he converted the $1,748 to his own use. Mitchell did not pay to the Hildebrands any part of the $1,200 that he owed to Hentzell and that he *93was directed by Hentzell to pay to tbe Hildebrands as part of tbe loan. Tbe Hildebrands never r'eceived any part of tbe money Hentzell bad promised to lend to tbem. In tbis transaction, as in previous transactions, Hentzell employed Mitcbell to examine tbe title and to see that tbe papers were made out properly and that bis loan became a first lien. True, the Hildebrands agreed to pay that expense, but that bur'den customarily is imposed upon borrowers, and such agreement did not conclusively prove that Mitcbell was tbeir attorney or agent. Nor did tbeir agreement to pay Mitcbell a commission have that effect. That burden, also, customarily is imposed upon borrowers. According to tbe trial court’s findings, Hentzell insisted that Mitcbell was representing him in tbe transaction.

Some of tbe facts detailed above were established by direct evidence, most of it uncontradicted; some, by legitimate inferences drawn by tbe trial court from facts and circumstances in evidence. Tbe trial court, after’ reviewing tbe evidence, concluded that Mitcbell was Hentzell’s agent in tbe transaction, and that Hentzell, not tbe Hildebrands, must bear tbe loss. We have examined tbe record with care, and are satisfied that tbe court’s findings are supported by tbe evidence, and that tbe judgment canceling’ tbe note and *the deed*of trust is justified by tbe evidence and tbe law.

Tbe judgment is affirmed.

Me. Justice Altee, sitting for Me. Chief Justice Adams, and Me. Justice Mooee concur.