The record on the trial in the Municipal Court shows that the plaintiff claimed in her bill of particulars that the money was left with the defendant, not individually, but as agent for the Illinois Surety Company, to be deposited in the Empire Trust Company for her in her name, subject to the joint control of the Illinois Surety Company. The surety company had given a bond on the appointment of plaintiff as administratrix for the purpose of bringing the action which resulted in the collection of the fund, one-third of which belonged to her and one-third to each of her children. The-plan agreed upon between the plaintiff and the surety company originally was to deposit any moneys received by her as administratrix in the Empire Trust Company subject to their joint control, but that was abandoned by mutual consent, and when the money was collected she determined that she did not wish it deposited to her credit as administratrix, but desired to withdraw her own share and be appointed general guardian for hfer children and in that capacity hold their shares. She evidently collected the money, for the evidence shows that she brought it to the office of the defendant, and after deducting her share it was left to be held pending her appointment as guardian, with the understanding that the surety company was to become her surety as guardian, and upon her appointment as such the money was to be simi*200larly deposited in her name as guardian in the Emigrant Sav.ings Bank, subject to their joint control. The money was deposited in the account of the surety company, kept by its authority in the name of the defendant, or that of his firm. It was subsequently withdrawn with a view to consummating the plan with respect to depositing it to the credit of plaintiff as guardian subject to the joint control of herself and the surety company; but with the money before heron the table in the office of the defendant as agent for the surety company, she changed her mind, and, according to the testimony of the assistant manager in defendant’s office who conducted all the negotiations with plaintiff in behalf of the surety company, she left the money to be redeposited until arrangements could be made for its transmission through the Italian consul to Italy, defendant having at her request consented to the cancellation of the bond given by the surety company upon her appointment as guardian, which was to be done upon the revocation of the letters of guardianship.
When evidence was offered tending to show that the account in which the money was deposited, although kept in the name of the agent, was the account of the principal so kept by its authority, the trial court said: “I do not question he (defendant) had the right to deposit this money in this account. ” The theory of the trial court with respect to the conversion was that the defendant had checked the money out in his business, and for his own purposes, and failed to account therefor to his principal. It is evident from the record that that is the theory upon which the defendant was held liable. I am of opinion that it was an erroneous theory. If, as the evidence indicated, the plaintiff authorized the surety company to retain and deposit the money without requiring it to make a special deposit thereof, then there was no conversion in the original redeposit of the money in the surety company’s account which was kept in the defendant’s name, and the relation of debtor and creditor between the surety company and the plaintiff thereupon arose. On these facts, the agent could not he held liable to the plaintiff for subsequently converting the money to his credit in the account, and it would be immaterial, so far as she is concerned, whether he accounted to his principal *201therefor or not. But he gave evidence tending to show that he did account to his principal therefor, and further evidence offered by him tending to show that he had so accounted was erroneously excluded.
I am of opinion, therefore, that the learned Appellate Term was right in reversing the judgment and granting a new trial, upon which the facts with respect to the authority for the redeposit of the fund, upon which alone the defendant’s liability for conversion must depend, may be more fully shown, for plaintiff was not called as a witness on the trial now under review.
Scott, J., concurred.
Determination of Appellate Term reversed, with costs, and judgment of Municipal Court affirmed, with costs.