Rose

— In November, 1882, the plaintiff and defendant’s intestate, N. R. Vail, made an agreement in writing, by which said Vail sold and promised to deliver to plaintiff 18,750 shares of stock in a mining corporation then about to be formed in the state of New York; the shares so to be delivered being one half of the whole number to which said Vail claimed he would be entitled on the completion of the incorporation. The purchase price of the stock — four thousand dollars — was paid by the plaintiff at the date of the contract. The corporation was subsequently formed, but the issuance of its stock was enjoined at the suit of third parties, and the injunction has never been dissolved.

In March, 1888, Vail died, and in due time thereafter plaintiff presented a proper demand to his administrator for the repayment of the four thousand dollars advanced by him as the purchase price on said stock. His demand being refused, plaintiff commenced this action to recover said four thousand dollars, as money had and received to his use. The findings and judgment of the superior court were in favor of the plaintiff, and defendant appeals from the judgment, and from an order denying a new trial.

The…