David v. May

<p>Abstract of the Decision.</p> <p>1. Trover and conversion, § 38*—when agreement subscribing for stock erroneously excluded as evidence. In an action to recover for conversion of money alleged to have been procured from plaintiff by false representations, where it appeared that the money alleged to have been converted was a part payment on a subscription for stock in a bank which was never organized, evidence of the written agreement wherein plaintiff subscribed for such stock, held erroneously excluded, it appearing that such agreement contained a clause authorizing defendants to use for organization purposes a proportion of the amount alleged to have been converted, such agreement being competent as tending to show, in connection with other evidence, that defendants were-not liable to plaintiff in any form of action for the full amount of such part payment.</p> <p>2. Trover and conversion, § 38*—when evidence as to disbursement of money erroneously excluded. In an action to recover for conversion of money alleged to have been procured from plaintiff by false representations, where it appeared that the money alleged to have been converted was a part payment on a subscription for stock in a bank which was never organized, and where the subscription agreement contained a provision that a proportion of such amount might be used for organization purposes, evidence that money had been disbursed for organization purposes by defendants held erroneously excluded.</p> <p>3. Assumpsit, § 50*—when action for money had and received lies upon failure of consideration. A person who pays money for shares in a company which never comes into existence pays it on a consideration which fails, and may recover such amount in an'action of money had and received unless it be shown that he has consented to or acquiesced in the application made of such money by those into whose hands it comes.</p>