1. Contracts—Construction—Extrinsic Evidence.

Where contracts require one o£ the parties to pay money to a person designated as “trustee,” but without stating for whom or for what purpose lie is trustee, the circumstances and negotiations leading up to and surrounding the transaction constitute its res gestse, and may be given in evidence in an action to determino which party is responsible for a defalcation of the trustee, not for the purpose of altering the writings of the parties, but to enable the court to correctly construe their agreement.

2. Same—Creation op Trust—Responsibility por Acts op Agent as Trustee.

Plaintiff applied to the general agent, who was also local manager and secretary, of defendant, to furnish a bond to a railway company, to whom plaintiffs had contracted to supply laborers to be paid by them, the company requiring such bond to protect it from claims which the laborers might make'against it for wages. The agent, as a condition to the furnishing of the bond, and for the protection of defendant, required the money to become due from the railroad company under the contract to be paid to him as trustee, to be disbursed by bim to tlie laborers, and the contract and bond accordingly provided that such money should be paid to the agent, designating him merely as trustee, and that he should pay the laborers therefrom, and pay over the remainder to plaintiffs. They also reserved the right to defendant to designate a new trustee at any time on notice to the other parties. Thqse requirements were within the general authority of the agent, and were also expressly approved by defendant, which subsequently ' expreised the power given it to change the trustee. Held, that the agent, in his capacity as trustee, represented defendant, which was responsible for the faithful execution of his trust, and liable to plaintiffs for the sum due them from the trustee on an accounting.