or how much he owed to persons other than the plaintiff, the defendant, and Diggles.

The defendant testified that the business, while under his management, did not pay or return any profits, and that, as a matter of fact, during said time he paid out more than he took in by the sum of $141.30. This testimony was not contradicted, except in the testimony of Attorney Bailey, of Dunsmuir, to whom it was agreed that all profits received by the defendant from the business should be turned over and by him distributed pro rata to the creditors, who testified that in one of the months during which the saloon was managed by Hamilton under the trust agreement the latter turned in to him $102 as profits from the business.

The transaction culminating in the agreement, while not strictly a technical assignment by Crist for the benefit of his creditors, amounted in practical effect to the same thing. But whether it was or not, the agreement nevertheless purports to be for the benefit of all the creditors of Crist, and the complaint, as we have shown, proceeds upon that theory.

That there were other creditors than the plaintiff, the defendant, and Diggles, is made manifest by the fact that, whereas the combined claims of these persons against Crist is or was approximately $2,032.50 only, the aggregate indebtedness of Crist was approximately four thousand dollars. Both the complaint and the evidence show this to be so. There is no showing either in the complaint or by the proofs that the creditors other than the plaintiff and the defendant knew anything about or consented to or bound themselves by the agreement which is the basis of this action or by any judgment that might be obtained herein. The defendant, to be protected against personal actions against him by creditors other than the plaintiff for damages for a violation of the trust agreement, was, notwithstanding that the action purports to be one in law for damages, entitled not only to an accounting of the trust property and funds, but also entitled to clear and specific findings of the facts by the court or by the jury under the order or direction of the court, and a judgment based upon those findings involving an adjudication of the respective rights of all the creditors of Crist. The general verdict and the judgment thereupon entered are uncertain as to many important facts essentially arising under the issues as made by the pleadings. It cannot be determined

either from the verdict or the judgment who the creditors of Crist are or who are entitled to partake of the fruits of the judgment and to what extent. Then the further question arises, What is the effect or full scope of the judgment? Does it end or extinguish the trust so as to protect the defendant against the effect of actions by other creditors than the plaintiff for damages for breach of the trust agreement? These and a number of other matters which could be suggested are of vital importance to the defendant, and, whether the action be one at law or in equity, it should have been disposed of by special and distinct findings either by the court or by the jury under the order or direction of the court. We are of the opinion, however, that, although the plaintiff seeks relief by way of compensatory damages, the peculiar nature of the transaction on which the action is based and the averments of the complaint bring the action within the cognizance of equity, since an accounting was necessary to arrive at a just determination of the rights of the respective beneficiaries and that special findings and conclusions of law were necessary to a specific and definite adjudication. thereof. (See Wingate v. Ferris, 50 Cal. 105.) At all events, as above stated, the general verdict is not determinative of the issues as made by the pleadings and developed by the evidence, and the judgment is, therefore, without sufficient support.

In view of the conclusion thus reached, the point that the evidence is insufficient to support the verdict, while possessing much force, need not be considered here.

The judgment is reversed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court May 3, 1918.

[Civ. No. 2113. Second Appellate District.-March 4, 1918.] E. K. FOSTER, Appellant, v. LOS ANGELES TRUST & SAVINGS BANK (a Corporation), Respondent. CONTRACT-DEPOSIT OF MONEY FOR PAYMENT OF MOTOR CARS-REFUSAL TO ACCEPT DELIVERY-ACTION AGAINST BUYER-WAIVER OF RIGHT TO RECOVER DEPOSIT.-Under an agreement between a buyer and seller of motor cars, where money was deposited in a bank to pay for the cars to be turned over upon delivery, the seller waived its rights against the bank for recovery of the money, where on refusal of the buyer to accept delivery it sold the property at public auction and sued the buyer alone and obtained judgment for the full amount of the difference between the amount actually secured at the sale and the amount of the contract price, without making any account whatever of the deposit.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge.

The facts are stated in the opinion of the court.

Isidore B. Dockweiler, W. D. Finch, and Thomas A. J. Dockweiler, for Appellant.

Jones & Weller, for Respondent.

JAMES, J.-This action was brought to recover the sum of $840 and interest. The gist of the claim of the plaintiff was that this money had been deposited with the defendant by a third party for his benefit, and that conditions precedent having been satisfied and demand made, plaintiff was entitled to collect from the defendant the sum mentioned. Answer was filed to the complaint and among the defenses alleged was that of the bar of the statute of limitations. The case came on for trial and before any witnesses were examined, defendant asked and was allowed to withdraw its plea of the statute of limitations. Thereupon, plaintiff being called as a witness in his own behalf, defendant objected to the introduction of any evidence on the ground that plaintiff's complaint failed to state sufficient facts to constitute a cause of action. This objection was sustained and the judgment of dismissal, from which this appeal is taken, followed.

It will be necessary to a proper understanding of the legal question presented to state more particularly the facts relied upon by plaintiff to sustain his suit, as the same are expressed in the complaint. In March, 1907, the plaintiff and A. W. McCready entered into a contract executory in form as to both parties, by which McCready purchased from the plaintiff ten motor cars, to be thereafter shipped from St. Louis, Missouri. The cars were to cost McCready in Los Angeles two thousand eight hundred dollars each. One car was to be shipped immediately on the making of the agreement and the remainder, in lots of three, were to be shipped in March, April, and June, respectively, of the same year. McCready deposited with the defendant on account of the purchase and for plaintiff's benefit the sum of two thousand eight hundred dollars, which the defendant was instructed to pay over to the plaintiff in installments of $280 for each car as the same was delivered. In May of the same year three of the cars contracted for were delivered to McCready and were paid for in full by McCready. Thereupon McCready and the plaintiff mutually released one another as to the sale and purchase of four of the cars referred to in the contract, and agreed further that McCready might draw down the sum of $1,960 of the two thousand eight hundred dollars deposit. The defendant was advised of this change in the agreement of the parties by letter in the following form:

"Los Angeles Trust Co.

"May 24, 1907.

"Gentlemen: We agree to the releasing of $1,960 of the $2,800 deposit on the escrow on Moon motor car balance to be applied on the last three cars. to be extended to Aug. 15, 1907.

Time of shipment of same

"E. K. FOSTER,
"A. W. MCCREADY."

Thereafter, and in August, the three motor cars agreed to be last delivered arrived, and on August 31st the plaintiff notified McCready and the defendant that the cars had arrived and were ready for delivery in accordance with the contract, and an offer was then made to deliver the same. McCready refused to accept the cars and this defendant refused to pay over the balance of the deposit, which amounted to $340, being the same sum herein sued for. The refusal of defendant to pay over the money was based upon instruc

tions given to it by McCready. Thereafter the plaintiff gave due notice that he would sell the three cars at public auction, and such a sale was held. The three cars were sold at this sale for an aggregate of $6,020. The expenses of sale amounted to the sum of about four hundred dollars. Thereafter an action was commenced by this plaintiff in the superior court, in which action McCready and this defendant were made defendants and in which action plaintiff sought to recover from McCready the difference between the amount received by him for the motor cars at the auction sale, plus expenses of sale, and the price which McCready had agreed to pay for the cars. It is not stated whether in this action summons was served upon this defendant, but it is set forth in the complaint here that defendant McCready demurred to the complaint in the action last mentioned, which demurrer was sustained. Thereupon this plaintiff, being the plaintiff there, filed an amended complaint in which this defendant was not named as party defendant. That action proceeded to trial and judgment was recovered against McCready for the amount prayed for. The judgment was rendered in November, 1908. This action was commenced in March, 1915.

It is appellant's contention that the money deposited by McCready with the defendant bank became due to plaintiff upon the performance of the conditions precedent, to wit, the offer to deliver the motor cars contracted for, and that upon the refusal of the bank to pay the same to him, there arose a cause of action in favor of the plaintiff entitling him to recover the principal amount in suit. Respondent asserts in its brief that it was acting as a mere depository, and under the provisions of section 1822 et seq. of the Civil Code, was obligated to return to McCready the money upon his making demand therefor. Respondent asserts that the conditions of the deposit were not like those attending an escrow, wherein a release of the fund must be assented to by both the depositor and the other party in interest. However, there is no occasion for dispute as to terms in characterizing the situation which arose between the plaintiff and defendant. It is quite clear that the contract as made between Foster and McCready, and of which the bank had full instruction, required the depository to pay over to Foster the remainder of the deposit when the last three cars were delivered. The depository was the agent of both parties for the purpose of applying the money in the way