Streeten

This is an action by Streeten, as assignee in insolvency of the American Bridge and Building Company (a corporation), to recover from the defendant the sum of eight thousand nine hundred and sixty-seven dollars and fifty-two cents averred to have been received *544 by said defendant to the use of said insolvent, and by him converted to his own use.

The cause was tried by the court, and findings in writing filed in defendant’s favor, upon which he had judgment, from which, and from an order denying a motion for a new trial, plaintiff appeals.

According to the findings the insolvent, on the eighth day of October, 1890, received from the government of the United States a check or draft, drawn upon the sub-treasury at San Francisco, for eight thousand nine hundred and sixty-seven dollars and fifty-two cents, which draft, properly indorsed, was delivered to defendant for collection, collected by him, and, with the consent of said insolvent, five thousand dollars was retained by him in payment for services rendered by him as an attorney for said insolvent, said sum being an agreed fee allowed him by said insolvent, and the residue was paid to said insolvent and to one Charles C.…