¶1The only controversy in this case was as to the right of the claimant to the funds in the hands of the trustee.
¶2*127The contract made by the trustee was nominally with the defendant; but it is found that in making it the defendant Avas acting as the agent of the claimant; so, that as between the defendant and the claimant, certainly, the contract was the contract of the claimant, and he was entitled to all the benefits that might result from its execution. The contract Avas not, in fact, performed by the defendant or claimant, the work not having been done as the contract required. The defendant never attempted to perform it, and had no legal claim against the trustee for services rendered or money expended under it. All that was done under the contract was done by the claimant, not by the procurement of the defendant, hut evidently because he understood that having authorized the defendant as his agent to make it he was under obligation to perform it. Having acted upon that belief and expended his time and money in the performance of the contract, his legal and equitable right to payment is superior to the claim of the trustee.
¶3Judgment affirmed.