The declaration as amended, in this action of contract or tort is in two counts: a first count for the conversion of one hundred shares of Ventura Consolidated Oil Fields stock and fifty shares of Libby, McNeil & Libby stock; and a second count, for money had and received, to recover the value of the stock described in the first count, aggregating $3,511.25. The answer is a general denial.
After a trial before an auditor, and the filing of a report by him adverse to the claim of the plaintiff, the case was tried to a jury. At the close of the evidence, all of which is contained in the bill of exceptions, the plaintiff “ elected to stand on the second count of his declaration, to wit, the count in contract.” He then moved “ that upon all the evidence as a matter of law a verdict be ordered for the plaintiff for the amount claimed in the second count of his declaration with interest from the date of the writ.” The trial judge denied the motion and the plaintiff duly saved an exception thereto. “ The defendants thereupon made a motion that the court rule on the pleadings and the evidence that the plaintiff is not entitled to recover; ” the judge granted that motion and directed that a verdict be returned for the defendants. The plaintiff duly excepted to this *248order, and the jury thereupon returned a verdict for the defendants in accordance with the direction of the court.
This ruling was right if the testimony of the plaintiff stood in every respect unimpeached and uncontradicted. That evidence, in substance, was that some time in October, 1919, the plaintiff bought of the defendants one hundred shares of Ventura Consolidated Oil Fields Company and fifty shares of Libby, McNeil & Libby stock for $3,533.75; that on October 31, 1919, he gave the defendants a check for the amount of his purchase, $3,533.75; that he left the securities at the request of the defendants “ for the purpose, so they said, of making some adjustments, bookkeeping entries; ” that on November 12, 1919, the securities were returned to him without any conversation or communication at that time; that on the same day, on the statement of the defendants that there was a mistake in sending the securities to him, “We need them to make some book adjustments,” he said, “All right, if you want them back I will be very glad to bring them back,” and he brought them back; that later he learned that the defendants held the securities as collateral on a Texas oil transaction with the defendants; that on March 3, 1920, he made a demand that the securities be returned; and that the defendants refused to make such return in response to his demand. The plaintiff in cross-examination testified: “ I most positively did not deliver this Ventura and Libby stock to Schirmer and Company [the defendants] as collateral; I left it at the suggestion of one of the parties for the purpose, so they said, of making some adjustments, bookkeeping entries.” The plaintiff offered no evidence, and none appears in the bill of exceptions, that the defendants had sold the securities and received the money from them when the action was brought on March 19, 1920.
The foregoing statements of facts, if believed by the jury, established a conversion of the securities by the defendants; but did not permit the owner to waive the tort and bring an action for money had and received, in the absence of evidence that the defendants had sold the securities and received the money. Jones v. Hoar, 5 Pick. 285, 290. *249Gilmore v. Wilbur, 12 Pick. 120. Berkshire Glass Co. v. Wolcott, 2 Allen, 227. Hagar v. Norton, 188 Mass. 47, 50. Arizona Commercial Mining Co. v. Iron Cap Copper Co. 236 Mass. 185, 190.
It is plain the plaintiff cannot recover on a count for money had and received if the defendants purchased and sold stock for him, in substantial performance of his direction, and expended money in his behalf in excess of the value of the securities which he had deposited with them as collateral, while his indebtedness remained unpaid. That the securities were deposited as collateral for the obligations which the defendants assumed at the request of the plaintiff, and that payments exceeded the value of the securities, are found by the auditor.
The contention of the plaintiff that the consideration for the agreement, for the performance of which the collateral was left with the defendants, failed, in that the defendants and plaintiff misjudged or miscalculated the time when the stock to be purchased from the plaintiff could be delivered, is true in so far only as such mutual mistake unavoidably inhered in the nature of the transaction. The mutual mistake on the evidence was collateral to the essential thing contracted about, Cavanagh v. Tyson, Weare & Marshall Co. 227 Mass. 437, and it would be inequitable to permit a recovery of the value of the securities, without a reimbursement of the money which the defendants had expended for the plaintiff in the purchase of the stock which the plaintiff had requested the defendants to purchase. Marston v. Singapore Rattan Co. 163 Mass. 296. Williston on Contracts, § 1595.
Exceptions overruled.