#### Thomas B. Tweddle, plaintiff, *vs.*George Hoffman and another, defendants.

Where one of the defendants originally received $1000 from the plaintiff to pay his subscription for stock of an oil company, which such defendant did pay, and the plaintiff'subsequently delivered the certificate of stock obtained by him on such subscription to the defendants jointly, to be by them applied to his subscription for the purchase of certain silver mines in Mexico, and took' from them their receipt for $700 in gold as received from him for his subscription to such mines, and such certificate was so applied, but the enterprise was abandoned. *Held*that the plaintiff could not recover the $1000 originally deposited by him with one defendant, nor the certificate of oil company stock, nor its value, nor the value of $700 in gold.

(Before Robertson, Ch. J., and Barbour and Garvin, JJ.)

Heard January 18, 1867;

decided October 7, 1867.

This action was brought to recover the sum of $1000, which the plaintiff deposited with the defendant Hoffman, on the 20th February, 1865. He took Hoffman’s receipt for it, by which it was to be applied as a subscription to a company about to be organized by the defendant Hoffman, to be known as the Hoffman Oil Company, which was so done. Subsequently the defendants solicited the plaintiff to change and put his money into the Rosiaro and Valencia *184silver mines, which the defendants represented they were about to purchase. The defendant Rose was acting for himself and Hoffman in what he did. The plaintiff gave up his first receipt taken for the $1000, and his certificate of stock in the oil company to a Mr. Seldon, and took the receipt set out in the complaint, under the specific agreement, that the $1000 he had subscribed for the oil company, should be changed and used for the purchase of the Rosiaro and Valencia silver mines. After this agreement with Rose, the receipt taken from Hoffman was given up to them, and the receipt set forth in - the complaint was given to the plaintiff. The Rosiaro and Valencia silver mines were abandoned by the defendants.' The plaintiff demanded the return of the $1000, which the defendants declined to return, and this action was brought to recover it.

After the evidence was in, the judge directed a verdict for the defendants, subject to the opinion of the court at general term. The plaintiff requested him to submit the question to the jury whether or not the contract was to put the $1000 subscribed to the oil company into the silver mine. Also all the questions in the case. Also, to direct a verdict for the plaintiff, which the court refused; to which refusal the plaintiff1 excepted. Other facts appear in the opinions delivered.

*Ira JD. Warren,*for the plaintiff.

I. If the agreement between Tweddle and the defendants was that this $1000 should be invested in this silver mine, the plaintiff was entitled to recover. He never had any stock in the oil company; he had simply a receipt for $1000 given before the company was organized, the de-fendant (Hoffman) having the money in his hands. The agreement to take the oil receipt for cash, or change the subscription to another and different company, was an agreement the defendants were perfectly competent to make, and they were personally bound by it. The plaintiff, after that, had no more to do with.the oil receipt than if he never had-*185had it. He stands as though he had paid $1000 to Hoffman and Rose, and they not having paid it for the silver mines were bound to return it to him. They have returned all the cash subscriptions they received on this enterprise from other parties. They now claim that notwithstanding, they made this *agreement*to put Tweddle’s $1000 in the silver mine, enterprise, all they are bound to return to him was the oil receipt. We claim that this is not so, for the following reasons:

1. The defendants were acting for the owners.of the Rosiaro and Valencia silver mines, and were paid by them a per centage on the subscriptions, for their services. They were distinctly authorized to receive any security *satisfactory to them.*They did receive this oil receipt as *cash,*one of the defendants having previously had the money. They cannot now refuse to carry out the purchase of the mine, and pay the plaintiff back his $1000, by a return of the oil receipt, which they allege was worthless, for the reason that there *was- no agreement*made that in case the Rosiaro and Valencia enterprise failed they should have the right to return him the oil receipt.

2. It was an absolute and unconditional sale of the oil receipt to the defendants for'$700 in gold, to be paid for in shares of a silver mine, which was worth the amount of $700 in gold. The plaintiff is entitled to his interest in the silver mine or the money, no reason being shown why they gave up the purchase of the silver mine. The defendants having failed to give him the interest in the silver mine, and having given up the purchase of it without the plaintiff’s consent, are bound to pay him its value, $700 in gold, or $1000, the amount represented by it. The defendants aver that they had no “ right or power to give up such purchase,” and yet Hoffman swears that “ they gave up the purchase,” and that they had returned to the subscribers the cash subscription.

3. It is conceded that one of the defendants had the-money from the plaintiff. It was competent for them to *186change its destination from one company to the other; and whether they did this, or by agreement took the original receipt for the money, as cash, it is money in their hands belonging to the plaintiff, precisely as though originally deposited for the silver mining enterprise. On this case the court should have directed a verdict for the plaintiff.

4. If, however, there is any conflict of evidence between the plaintiff and Rose as to what the agreement was, it should have been submitted to the jury, as requested by the plaintiff, as they were the only witnesses who testified upon that subj ect.

*L. 8. Qhatfield,*for the defendants.

I. The complaint does not set forth a cause of action, and no recovery could be had upon the facts contained in it. It shows on its face that the money was deposited with Hoffman as trustee of a joint enterprise, and was intended as a subscription by the plaintiff to that enterprise, This money could not be recovered from the trustee in violation of the contract under which it was delivered.

II. There were several fatal variances between the proof and complaint.

1. The complaint alleges that the plaintiff *deposited*$1000 with George Hoffman. The proof is, that he did not deposit any thing with George Hoffman.

2. The complaint alleges that the plaintiff deposited $1000, equal to $700 in gold. The proof is that he did not *deposit*any thing with Hoffman or Rose, and that what he left in exchange was a certificate of stock in the Hoffman Oil Company, and not money, and that was left with one Selden.

8. The complaint alleges that the defendant Hoffman gave the plaintiff a receipt, &c. The proof is that Selden gave him the receipt.

4. The allegation proceeds on the hypothesis that the plaintiff had deposited money with the defendants to purchase certain silver, mines. The proof shows that the plain*187tiff exchanged one certificate for another, and that no money entered into the transaction. This is a variance of substance, and fatal to the action. (2 *Cowen’s Treatise,*378, 378, 379, 382.)

TIT. The defendants were *trustees*under a special contract, by the terms of which the plaintiff was bound. Until the contract was mutually given up by the contracting parties, the trustees were subject to its provisions. Mr. Stearns was the party on one side, and could require its performance, and he had an interest in the money deposited with the trustees. There is no evidence that he ever'agreed to give up the contract, or his right to the money paid in, and until he' did, or in some way forfeited his right, the plaintiff could bring no action to recover back his subscription money.

IV. The trustees, as such, had no power to contract or to ' abandon the purchase. They were mere naked depositaries, with ho power except to receive, and pay over the money according to the contract. In law, the contract has not been given up, and Stearns may still enforce it and call the money subscribed out of the hands of the trustees.

V. If the contract for the purchase of the mines was abandoned and at an end, the parties were remitted to their original condition. The plaintiff, on surrendering the certificate he received from the defendants, was entitled to the oil stock certificate which he exchanged for it, and to nothing else. This was offered to him when he made the demand, and the offer was a full and complete answer to his claim. He could not, by refusing to accept it, turn it into gold.

VI. The demand was not sufficient to sustain the action. It was a demand of money, but whether $700 or $1000, is not shown. The specific and right sum should have been named. But a demand of *money*was *no*demand in this case; the *thing deposited,*should have been demanded, and if *that*was refused, its value in money might have been recovered. As against a mere depositary the thing deposited must be demanded before a right of action can accrue.

*188VH. The purchase of these mines was a joint enterprise, to which the defendants, the plaintiff", and many others, were parties. One of these parties cannot sue another to recover a portion of the joint fund, nor to recover a demand against the whole. An account in equity may be required, but an action at law cannot be maintained.

VIII. There was nothing to go to the jury, The action had entirely failed, and there was no question for them to decide. There was no proof to sustain the first request, to submit to the jury. The books of the Hoffman Oil Company showed Tweddle to be an original subscriber of that company, and he held a certificate of stock in that company for $1000. This certificate was handed to Selden in exchange. There was not, and could not be any $1000 subscribed by him to the stock of the oil company, to be put into the hands of the trustees by Tweddle, by way of exchange, or for any purpose. It was absorbed in the capital of the old company, and all he could have to represent it was his stock, and this he confessedly handed oyer to Selden. Rose and Tweddle had no power to negotiate about the money paid in as capital to the oil company. It was and had been for a long time beyond their reach.

Barbour, J.

This case comes before us upon one motion by the plaintiff, upon exceptions and the evidence, for judgment in his favor, *(non obstante*veredicto,) or for a new trial, and another, in behalf of the defendants, for a judgment upon the verdict rendered by the jury at trial term.

The action was brought to recover the value of $1000, in gold, alleged in the complaint to have been deposited by the plaintiff with the defendants to be expended for the purchase of certain silver mines in Mexico, and which, it is averred, they have failed so to expend, or, on demand, to return. The receipt of the defendants, which is the evidence of the obligation or trust, is in the following words:

> *189$700 in gold. • “New York, October 6, 1865.

> Received of Thomas B. Tweddle seven hundred dollars in gold, being the amount subscribed by him for the purchase of the Rosairo and Valencia Silver Mines in Chihuahua, Mexico, which will entitle him to seven hundred dollars subscription. George Hoeemah,

> M. H. Rose, Trustees.

> $700 subscription.”

The answer denies that any funds were received by the defendants in their individual capacity, or otherwise than as trustees; and avers, among other things, that no money was delivered to them by the plaintiff, but only a certificate of stock of the Hoffman Oil and Land Company, amounting, nominally, to $1000; that steps have been taken by the defendants to complete the purchase of the mines, but that sufficient time has not yet elapsed to enable them to do so; and they express their readiness to return such certificate of stock upon the surrender to them of their receipt for .the $700 in gold.

The evidence shows that the defendants were negotiating with the owner for the purchase of the Mexican mines, on behalf of such persons as were or should become subscribers to the fund for that purpose, for the price of $150,000 in gold, but for a portion of which such owner had agreed to receive in payment certificates of stock of the Oil and Land Company at the rate of $1000 in such stock for $700 in gold; that, pending such negotiations, the defendants applied to the plaintiff, and advised him to become one of the subscribers to such contemplated purchase, and informed him that they would receive his stock and apply it in the making of such purchase, in lieu of, and as representing $700 in gold, and that, thereupon the plaintiff delivered to them his certificate of stock, and took from them the receipt set forth in the complaint.

As evidence was given upon the trial tending to prove that the project of purchasing the mines had been aban*190doned, sufficient to have authorized a finding by the jury to that effect, tbe single question is, whether the plaintiff is entitled, merely, to the return of the certificate of stock which he delivered to the defendants, or to recover, in this action, the value of the gold mentioned in the receipt.

The receipt, of itself, unconnected with the evidence in the case, neither expresses nor implies any trust to be performed by the defendants, nor any obligation to return the gold therein mentioned. If, therefore, the defendants are bound to account in this action for the value of, such gold, that obligation must be found in the facts proven upon the trial. How, the testimony shows that no gold whatever was received by the defendants, but that the plaintiff delivered to them, without any transfer of the title or ownership thereof, a certificate of stock in the Oil and Land Company, of the nominal value of $1000, to be by them applied to the purchase of the Mexican mines, for the plaintiff’s benefit, as well as that of the other subscribers who were, or were to be, associated with him in such purchase. It was, probably, a power in trust that was thus conferred upon the defendants, which would have enabled them to transfer the title to the stock if the purchase had been completed; but, as no purchase was made, and the' negotiation has been abandoned, the power in trust has ceased, and the plaintiff will be entitled to the possession of his certificate, upon demanding the return thereof. But no obligation or duty was assumed by the defendants, either by the delivery to them of the certificate, or the. giving of the gold receipt, except to apply the certificate to the purchase of the mines, or to return it to the plaintiff.

The claim of the plaintiff that the money originally paid by him to the defendants, or one of them, for the certificate of stock in the oil company, is the $1000 mentioned in the complaint, has not a shadow of merit. That transaction was not connected in any manner with this, but was entirely closed by the transfer or assignment of stock in the oil *191company, in consideration of such payment, some time before the certificate was delivered to the defendants.

Judgment should be entered for the defendants upon the ^verdict, with costs.

Garvin, J. concurred.

Robertson, Ch. J.

The terms of the receipt set out in the complaint, were capable of being disproved, and it clearly appears by the testimony that the statement in the complaint as sworn to by the plaintiff, that he deposited any money for the purpose therein set out, was untrue. He had paid $1000 to the defendant Hoffman, and claimed and took from him therefor a certificate of stock in an oil company. This he subsequently exchanged with a third person (Mr. Selden) for a subscription for the purchase of certain mines in Mexico, apparently with the intent of having it delivered to the seller of such mine as payment of such subscription. At all events, such seller received it as such, and the title to the mine was thereby secured.

The testimony of the defendant Hoffman, that the subscribers “ gave up ” the contract, is clearly not to be understood as implying a rescission of it, because he says “ *nothing was done about it”*and that “ the title to the mine had been secured.” He, undoubtedly, meant to speak of a failure to prosecute the enterprise on account of the war. The defendants, therefore, did what by the terms of their arrangement with the plaintiff, they agreed to do, to wit, acquired for him an interest in the mines to the extent of the amount mentioned in the receipt. I, therefore, concur in overruling the exceptions and ordering judgment for the defendants.