¶1It appears from the evidence that the plaintiff and defendant entered into' an agreement by virtue of which the plaintiff was to procure title to certain real estate, the defendant was to advance the funds for its purchase, the estate purchased was to be conveyed to the defendant to hold the same as security for advances made in its purchase, and for other claims which he held against the plaintiff and interest thereon; the defendant was to hold the estate (subject to his claims thereon) in trust for the plaintiff, and if sold, to account to him for the proceeds thereof, after deducting what might be due him.
¶2In pursuance of this arrangement, the plaintiff procured the title to the whole or to a portion of the lot in question, and on the 22d August, 1856, conveyed all his “ right, title, and interest ” therein by deed of quit claim, and for the consideration of two hundred dollars, to.the defendant.
¶3On September 6, 1866, the defendant conveyed the lot in question by deed of warranty to Weston E. Milliken for the consideration of eight hundred dollars. In the deed the land is described as the “same lot I purchased of Marquis F. King, July 15, 1861,” etc.
¶4There is evidence tending to show that there were at least five co-tenants in the estate. The plaintiff claims that he' procured the title to the whole estate, while the defendant denies that he acquired from him title to more than four shares.
¶5There was likewise evidence tending to show that the lot was worth much more than the amount for which it was sold.
¶6The writ is assumpsit for money had and received. The plaintiff’s specification of the claim to be proved under the money count is as follows:
*1131866. Isaac C. Nesmith to H. J. RaND, Dr.
To proceeds of sale of land, corner of Washington and Walnut streets, in Portland, $800.00
To interest on same to demand, 200.00
$1,000.00
¶7There are certain deductions for credits which it is immaterial to consider.
¶8The only exceptions presented relate entirely to the charge of the justice presiding, which was as follows:
“ It has been contended by the defendant that if you should come to the question of damages, you cannot give the plaintiff as damages for the land the whole $800, being the amount in gross for which Nesmith sold it, but only a certain portion of the $800, on the ground that Nesmith received from the plaintiff only a certain undivided portion of the whole title. But for the purposes of this trial, I rule that if you find that Nesmith received from the plaintiff a certain proportion of the title, you will not necessarily be limited to awarding the plaintiff the same proportion of the $800, but you may give such damages not exceeding $800 as you shall find the title actually received from the plaintiff is reasonably worth.”
¶9The instruction thus given was erroneous in two respects.
¶10In an action for money had and received, the plaintiff is limited to the amount thus had and received.
¶11The defendant is only to account for the proceeds of land conveyed to him from the plaintiff, not for the proceeds of land the title to which he acquired from some other source. He only holds in trust what he has received from the plaintiff, and he is only to account for what he has thus received. The instruction compels him to account to the plaintiff for land he never owned.
¶12There is no estoppel as against the defendant by reason of his deed of warranty to Milliken. The deed is not between the parties to this suit, nor does it purport to pass any title derived from the plaintiff, but it specifically refers to the lot conveyed by King.
¶13*114Nor. was the value of the lot a question for the consideration of the jui-y. The suit is not for its reasonable worth. The money received from its sale is the limitation of the plaintiff’s right to recover — a limitation imposed on the plaintiff by the remedy adopted.
¶14That the defendant might and ought to have sold for a larger price is not a matter for our consideration, as he is not sued for any act of omission or commission in the discharge of his trust, but on the contrary, the suit affirms what has been done, and is to recover the proceeds of the sale as made.
¶15The instructions, to which no exceptions have been taken, must be presumed to be correct. The degree of credit to be given to the witnesses on the one side and the other was for the consideration of the jury, and no reason is perceived for disturbing the verdict as against evidence. But as the instructions reported were erroneous, a new trial must be granted.
¶16Exceptions sustained.