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Opinion,

Mr. Justice Green :

A judgment of compulsory nonsuit having been entered at the close of the plaintiff’s testimony, the truth of all the facts proved, and all legitimate inferences therefrom, must be assumed in faAmr of the plaintiff. The fact that Wolcott was the agent of the defendants in procuring the certificates from the plaintiff is one of these, and the liability of the defendants for the acts and declarations of their agent in the course of the transaction is a necessary legal inference. Another leading and very serious fact, entirely without question, is, that the defendants, by means of, and in consequence of, the acts and declarations of their authorized agent, obtained from the plaintiff certificates for three thousand barrels of oil of the actual cash value of over ten thousand dollars, for which they gave him nothing having any value, and, as he alleges and testifies, nothing which he ever agreed to accept. The certificates which the defendants offered to the plaintiff were absolutely and utterly worthless, and it is an inference which a jury would be perfectly at liberty *173to draw, from all the facts of the transaction, that the defendants knew their worthless character when they tendered them to the plaintiff. Moreover, it was positively testified by the plaintiff, and must be assumed as verity, that the plaintiff only agreed to part with his good certificates upon condition that he should have the name and responsibility of parties who were perfectly good in a financial sense, in addition to the certificates he was to receive in exchange. It is equally true that the certificates which were offered to him had not a penny of value in themselves, and that no name and no responsibility to which he could have recourse was furnished to him in the manner in which the defendants undertook to perform their part of the contract. It is also positively testified by the plaintiff, and must be assumed as verity, that at the very moment when the certificates tendered by the defendants to the plaintiff were seen by the plaintiff, he peremptorily refused to receive them, and denounced the transaction as a fraud contrived to rob him of his certificates. It is also a perfectly established fact that, although his refusal to receive the certificates of the defendants was immediately communicated to the defendants, they utterly refused to return the plaintiff’s good certificates to Mm, or to give him any value for them, or to give him a particle of security, or to indemnify him in any way whatever. They evaded him, and gave him some vague promises which they never performed, but that was all; and the plaintiff’s loss of over ten thousand dollars, and the defendants’ acquisition of his property of that value, without their giving him any equivalent of any value at all, became an accomplished'fact, for which no redress has as yet been obtained.

But there was another fact equally as well established with the rest, which gives a peculiar and especial character to the transaction well worthy of notice. It is this: The plaintiff was induced to part with Ms certificates to the defendants, in advance of any delivery by them, and without anything to show for them except the verbal promise of the defendants by their agent to deliver the certificates of the Transportation company, with the name and responsibility of a party perfectly sound’ and good. The thing was done by the defendants’ agent, and therefore it was their act; but even the name of the principal was not disclosed at that stage of the transaction. It was, of *174course, a very unwise act on the part of the plaintiff, but there was thereby added to the mere legal obligation of the defendants an obligation of honor which, we are glad to believe, the great majority of the business community would be keenly anxious to observe. The defendants had been intrusted with the possession of the plaintiff’s certificates. That possession was obtained in this way: The defendants’ agent represented to the plaintiff that his principals were anxious to use the certificates “ right away,” and if the plaintiff would deliver them to him, he would bring him the other certificates later on during the day. The plaintiff then delivered his certificates to the agent, and that was the last he ever saw of them. When he demanded them back, with an indignant protest, he was refused them. It may be possible that the pretext upon which the possession of the plaintiff’s certificates was obtained was real and consistent with honor, but it was pre-eminently the function of a jury to determine whether it was not a false and dishonorable pretence, and part of a scheme of fraud devised to cheat the plaintiff out of his valuable securities. Upon the facts as they now appear, it was the plain duty of the defendants, either to return the securities the moment they were demanded, or else, to give to the plaintiff some equivalent for them which he was entirely willing to receive.

It is perhaps unnecessary to discuss the facts of the case any further. We are clearly of opinion that it was grave error to withdraw them from the consideration and decision of the jury. They raised in a very forcible and emphatic manner a question of fraud in fact, which the court had no right to decide but was bound to commit to the jury. It was not by any means a case in which the proof was only a scintilla. On the contrary, it is difficult to understand, upon the testimony as it now stands, and upon the prominent leading facts of the case, how it is possible to explain the transaction on behalf of the defendants, consistently with any regard for business integrity or common honesty. It cannot be believed that, if the defendants’ agent had offered to the plaintiff, at the time he proposed the exchange, the same certificates and in the same condition in which they were when he really did offer them, the plaintiff would even have considered the subject of an exchange, much less agreed to it. We are not informed of the reasons why the *175first verdict for the plaintiff for nineteen thousand dollars was set aside. The only reason given by the court below for granting the compulsory nonsuit, was that it was not a question whether the transaction was wise or not on the part of the plaintiff, and that sympathy has nothing to do with enforcing a contract. This view is very far short of an adequate treatment of the case. The palpable facts, as we regard them, present a question, not of the enforcement of a contract, but of the procurement by the defendants from the plaintiff of his very valuable securities by means of a base fraud. If such a fraud was practiced, and the securities of the plaintiff were obtained by means thereof, the transaction was utterly void from the beginning, the plaintiff never lost his title to his certificates, and he is entitled to have them back, or their value with interest. It is not a matter of much consequence whether the remedy invoked is replevin, trover, trespass, or assumpsit; since the claim of the plaintiff is founded upon the proposition that he never lost his title to the property obtained from him by fraud, and any well-known remedy applicable to the recovery of personal chattels or their value, the right to which is in the plaintiff, and the possession of which is unlawfully in the defendant, is available to that end.

With reference to the proposed amendment, we think that, in view of the fact of the very long delay in making the application, and of the fact that the defendants’ mouths are closed by the death of the plaintiff, and that the allegation of fraud is more difficult to make out than the mere liability upon a' failure of consideration, it would not be equitable to permit the plaintiff to gain an advantage by the pleadings which he did not have before the application was made, and we therefore decline to sustain the first assignment of error.

Judgment reversed, and new venire awarded.

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