Elias

Plaintiff brought this action against Paul E. Erwin, his wife, Helen Erwin, Worcester Thomas, and his wife, Katherine Thomas, for the recovery of the sum of $4,500 allegedly deposited with the defendants to be used in the purchase of cattle for plaintiff which were to be sold for his account. It was alleged that defendants orally agreed to keep the sum of $4,500 contributed by plaintiff in a separate account, to earmark cattle purchased therewith as the property of plaintiff and to keep intact in money or cattle the amount of plaintiff’s contribution plus 3 per cent of the sales price of cattle sold, plus also 50 per cent of the profits from the use of the money advanced by plaintiff; that defendants did not place plaintiff’s money in a special account, did not earmark cattle purchased therewith; that they purchased cattle with the money and sold them; that plaintiff demanded payment of $4,500 plus $158.50, but that defendants had paid only the sum of $128.50. A second cause of action accused Helen Erwin of fraud in obtaining the money and a third cause of action sought recovery of $4,635 as for money had and received. The action was tried to the court upon the complaint and the…