In 1916 claimant and Andrew Davis, defendant’s testator, entered into a joint adventure to acquire certain lands in Chautauqua county containing a deposit of marl and to organize a corporation to develop the property acquired, utilizing this marl deposit in the production of a fertilizer. The arrangement was that claimant should procure options on the lands desired and if later the options were exercised, Davis was to furnish the money to pay for the properties. The interest of the parties was to be on the basis of one-third to claimant for procuring the options and two-thirds *322to Davis who furnished the money. Claimant procured certain options and later the property was purchased, Davis paying all the money. The title to the properties was taken in the name of Davis, excepting the Bremer property, worth about $4,000, and in that case title was taken in the name of Raymond, this claimant, and he has retained the property.
On or about the 9th day of March, 1918, after the proposed corporation had been organized, Davis deeded .the property where title had been taken in his name to the corporation and he received from the corporation $15,000 par value of - its stock and a check of the company for $15,000. At the same- time Davis gave to each of three directors of the company checks for $5,000, making $15,000 in all. These three checks and the $15,000 check Davis had received from the corporation were all deposited at the same time in the same bank and the administrator contends, that Davis actually received nothing in cash from the company but that the $15,000 check he had received was taken up by checks he had given to the directors and that they were without consideration. In other words, it is the contention of the administrator that Davis’ checks given to the directors actually made good the $15,000 check which he had received from the company so that in fact he received nothing for his property excepting $15,000 in stock.
On the death of Davis, claimant presented to his executors a claim for his one-third interest in this enterprise, claiming that he was entitled to one-third of $30,000 on the theory that Davis had received from the company when he deeded over the property where title had been taken in his name, $15,000 cash. The jury found with claimant to the effect that Davis actually received $15,000 in cash from the company in addition to $15,000 of its stock.
That finding is against the weight of the evidence. Of the three directors, Dick, Lamberton and Green, who had received $5,000 checks from Davis, only Green gave evidence on the trial. Claimant sought to establish by Green that he had already paid Davis back the $5,000 represented by the check he had received from Davis. This evidence is neither satisfactory nor convincing.
About all witness Green could say was that it was his “ impression ” that Davis loaned him the money to pay for the stock which had been issued to him but he admitted he might be wrong about it.
His recollection on the subject was extremely hazy. The fact that all four checks were given at the same time, one to Davis from the company for $15,000 and three $5,000 checks, given to each of three directors, all at the same time and on the same bank, and all four checks being deposited at -the same time, point strongly to the idea that Davis’ money actually took up the $15,000 check *323the company had given and that in fact all he actually received from the company when he turned over the property where title had been taken in his name was $15,000 in stock of the company and of doubtful value. It is to be noted also that the claim as filed made no mention of claim to any share in a cash payment.
As there will have to be a new trial, we would point out that even on claimant’s theory his interest in the Bremer property would be on the basis that Davis was to receive in the joint adventure two-thirds of the value of the property and claimant one-third, and the deduction allowed Davis on the Bremer property should be based on the value of the property and not on the amount he had paid for it.
The finding of the jury that Davis received $15,000 in cash besides the $15,000 in stock is contrary to and against the weight of the evidence. Possibly on another trial claimant will be able to show that Davis actually received $15,000 in cash from the company and that the checks of $5,000 each given to the directors at the time he received the $15,000 check from the company were loans that were subsequently paid. But the evidence that Davis actually received $15,000 is so unsatisfactory that I think in the interests of justice there should be a new trial.
The decree of the surrogate entered on the verdict of the jury should be reversed on the facts and a new trial granted, with costs to appellant to abide the event.
Hubbs, P. J., Sears, Crouch and Taylor, JJ., concur.
Decree reversed on the facts and new trial granted, with costs to appellant to abide event.