Tried, below before Hon. W. H. Jenkins. Flint & Flint sued Van Hall, defendant below, on a conditional acceptance for 8314.75, by petition filed May 20, 1890. The petition alleges, that the money was by force and fraud taken from one H. A. McNally, and put in the hands of Van Hall; that on May 10, 1890, McNally executed and delivered to plaintiffs an order on Van Hall for the money. Hall accepted the order May 10, 1890, on condition the money proved to be McNally’s money.
Decided 1893-10-18
KEY, Associate Justice.
¶1
There is error in that portion of the charge of the court below wherein the jury were told, that if McNally procured the money in question from Mrs. Cummings by any fraudulent representations by which he deceived and overreached her, the title to the money did not vest in him. The issues raised by the pleadings did not call for such a charge, and it was misleading.
¶2
When analyzed, Mrs. Cummings’ plea of intervention does not charge that McNally induced her to lend him the money through any fraud or misrepresentations. In fact, it does not aver that she loaned him the money. It alleges that she entrusted him with it as her agent, to be by him invested in a business enterprise for her. It also charges that she was induced to so entrust her money to him by his false and fraudulent representations that he would invest it according to her wishes. But this latter averment was wholly unnecessary, and should have been treated as surplusage.
¶3
If Mrs. Cummings placed the money in his hands as her agent, to be used for her benefit, it remained her money; and this is so regardless of her reasons for so entrusting it to him. On the other hand, if she loaned him the money, and he did not obtain it with intent not to repay it, and did not misrepresent existing facts relating to his ability to repay it, then it was McNally’s money, and his order on Hall in favor of appellants for it vested title in them, and entitled them to it. This is all there is in the
*406
case. No issue of fraud should have been submitted to the jury, because, in legal contemplation, none was raised by the pleadings.
Delivered October 18, 1893.
¶4
Under the charge given, the jury may have concluded, that if Mrs. Cummings loaned McNally the money, but was induced to do so by his false representations as to the purposes for which he intended to use it, title thereto did not pass to him.
¶5
But such is not the law. If in fact the transaction was a loan, and McNally misrepresented no fact concerning his ability to repay it, then it became his money, although he may have deceived Mrs. Cummings as to the manner in which he intended to use it
for his own
benefit. And under such circumstances, unless he borrowed the money with the design never to repay it, there was no fraud against which the law affords relief.
¶6
The judgment of the court below is reversed and the cause remanded.
