Error is prosecuted in this case to the judgment of the district court of Milwaukee county, at the last November term.
There are certain preliminary questions to be settled in this case, before we consider the grounds of error, presented by the exceptions taken at the trial. It is contended by defendant in error that this is a constitutional court, and by the provisions of the seventh article of the amendments to the constitution of the United States, can review matters once tried by a jury only according to the course of common law.
The supreme court of the Territory of Wisconsin, while adjudicating in cases arising under the laws of the Territory, is a legislative court, must conform its decisions to the laws of the Territory, and is not subject to the restriction referred to in the said seventh article of the amendments *428to the constitution, as would be the case, were it deciding causes arising under the constitution and laws of the United States. 1 Peters, 546.
We understand however, that the examination in this court of an error alleged against the opinion of the district court in refusing to grant a new trial, is not a review of any matter once tried by a jury, but of the opinion of the court in the exercise of a sound legal discretion; a subject which had not in any wise been considered by the jury.
It is now well settled that this discretion must be a sound legal discretion, and is therefore the subject of error when exercised against the rules of law applicable to new trials. The statutes of the Territory require this court to review errors on motions for new trial. Revised Statutes, 196.
There are two bills of exception in this case, and it is insisted that the plaintiff in error cannot be permitted to rely upon the bill taken before the motion for a new trial was submitted; that the motion waived the exceptions, because plaintiff in error could not rely upon both remedies at the same time. There might be some reason for this position, if the motion embraced the same points excepted to in the bill; without this, there is certainly nothing to sustain it. In legal reason and practice, there can be no objection to two, three or more bills of exceptions, or a bill of exceptions and motion for new trial after, if they do not embrace the same matter. The only case cited against entertaining a motion for a new trial, until a bill of exceptions is waived, is in 5 Mason, 173. Judge Story there stated it to be the practice of the .circuit court of the United States for the first circuit, “not to entertain a motion for a new trial, unless the bill of exceptions is waived.” The reasons for this practice there assigned, plainly demonstrate, that it applied only in cases where the motion and bill of exceptions embrace the same matters. Nothing is relied on to support the rule but the authority of practice.
*429A very different practice obtains in the courts of many of the States of this Union, and being of opinion that a party should have the advantage of his exceptions and, motion for new trial also, if they possess merit, we incline to the practice of allowing the exceptions and motion. However, conceding to the practice stated by Judge Story all the merit which can be claimed for it, the point in the case at bar is not sustained by this practice. In this case the bill of exceptions was not waived, still the court considered the motion and overruled it upon other grounds, for aught that appears of record. The correctness of this practice, will not be here questioned, but we will take up the case as it is presented by the record.
It is assumed by plaintiff in error, that if it appear from the record, that the defendant in error (plaintiff below) has not presented to the district court such a case as would entitle him in law to recover, in the form of action chosen by him, then this court would reverse the judgment, although the objection was not taken by demurrer or otherwise in the district court. To this principle we assent, and will examine the objections to the plaintiff’s right of recovery, in the form of action which he has adopted in this case. It is contended, that the receipt introduced on the trial of this cause by plaintiff (below) as evidence, in these words-: “Rec. Milwaukie, 15th Aug., 1836, of Worling Bradford, one thousand dollars cash, to invest for him in town lots or lands, according to the best of my judgment, and when invested I am to inform him of the same. (Signed) James H. Rogers.” —proves a special contract between the parties in relation to the $1,000 ; and that the plaintiff (below) cannot recover the same in assumpsit on the common counts.
The court does not understand the position as being within the principle assented to. This receipt’ is only matter of evidence and not the foundation of the action, it might have been introduced either by plaintiff or defendant to show the receipt of the money, and for what received, and is not a part of the record of the plaintiff’s *430• case as contemplated within the principle. The production of such a special agreement, as evidence on the trial by either plaintiff or defendant (below) does not compel plaintiff to resort to his action on the special agreement, as the doctrine is well settled, that a misapplication of the fund under the agreement rescinds it, and entitles the plaintiff to recover in an action for money had and received ; and where plaintiff relies upon a misapplication of the fund to recover for money had and received, no other form of action could be adopted. Where one receives money for a particular purpose, and applies it to his own use, or to a different purpose, or refuses or neglects to apply it to the purpose designated, it may be recovered back in an action for money had and received. Wales v. Witmore, 3 Dal. 252; M’Neally v. Richardson, 4 Cow. 607; Dunman v. Carpenter, 8 Johns. 183; Guthrie v. Hyatt, 1 Har. 446.
Having disposed of these questions, we now come to the prominent grounds of error assigned in this case. The last branch of the. first instruction of the district court to the jury is excepted to. The instruction is in these words : “By the receipt in evidence the defendant promised to invest the $1,000 in lots or lands for the plaintiff. By the receipt, Rogers should have purchased the land in the name of Bradford, and taken a deed including the name of Bradford. Taking a deed in his own name alone, is not a proper execution of the promise, and is not an application of the fund.” It is a question of law for the court to decide, as to what facts are established by a written instrument permitted to be read as evidence on the trial of a cause, and what legal obligations are imposed on the party or parties thereto. They are not facts in pais, to be inquired of and settled by a jury, but legal results from a state of facts presented in a deed or instrument in writing, proven and established by the instrument, and no longer a subject of doubt or inquiry. The court may err in the legal deduction drawn, but not by instructing on the sub*431ject-matter. The inquiry arises, did the court err in the last branch of this charge to the jury ? It is clear that the branch of the instruction which asserts the legal conclusion, “that the taking of a deed in his (defendant’s) own name alone, is. not a proper execution of the promise, and is notan application of the fund” was correctly given. The principles settled by the authorities last cited, and in Story’s Law of Agency, 137 and 140, establish the correctness of this charge. And the defendant so considered it, because he introduced evidence, as appears from the record, tending to prove that plaintiff confirmed the application of the fund in this manner.
The district court properly instructed the jury that the plaintiff could confirm the act of defendant, and agree that the purchase made by him should stand in his, dedefendant’s, name for the plaintiff’s use. And if the plaintiff did so with a full knowledge of, or the means of knowing the transaction and his own rights in connection therewith, then the promise is executed, and the plaintiff bound by it.
The second exception is to the opinion and decision of the district court overruling the motion for a new trial, and error is assigned thereon. The reasons insisted on are:
1st. The verdict was contrary to law and the evidence in the case, and should have been for the defendant instead of the plaintiff.
2d. That the charge of the court to the jury on the law, as applied to the facts of the case, was erroneous, and influenced the jury to find a verdict for the plaintiff when it should have been for defendant.
3d. That the court erred in charging the jury, that the taking the deed by Rogers, the defendant, in his own name, was not a proper execution of the promise, and was not an application of the fund.
4th. Surprise of defendant.
5th. Newly discovered evidence.
In the consideration of the error assigned on the over*432ruling of this motion, is involved the merits, as well of the plaintiff’s case made out at the trial as of the defense set up, and sought to be strengthened by the newly discovered evidence presented in the motion.
It is a well settled rule, that an agent is bound to keep his principal informed of all material occurrences in the agency; if he faff to do so, it is negligence, and a palpable violation of duty for which the factor is clearly liable. This general principle required the defendant to inform the plaintiff how he had invested his money. His receipt also obligated him to do it. Therein he promised to invest the money for defendant in lands or town lots, and when invested, to inform plaintiff. Instead of taking the deed in the name of the plaintiff, which he ought to have done, and which was necessary in making the investment for plaintiff, he took it in his own name, and advised or informed the plaintiff that he had taken the deed in his and plaintiff’s name, which, by his own showing on the trial, was not true. There was not only a violation of duty and breach of faith, but a willful misrepresentation of a most material and important fact. The defendant in this case promised to transact a single piece of business, without discretion, except as to the value of the property purchased in reference to a good bargain, and he was bound to fulfill the promise to the letter. Harvey v. Turner, 4 Rawle, 223, 229; Toland v. Murray, 18 Johns. 24; Hubbard v. Elmer, 7 Wend. 446; Hampton v. Specknagle, 9 Serg. and Rawle, 212; Courceier v. Ritter, 4 Wash. C. C. 549; Kingston v. Wilson, id. 310; Jackson v. Baker, id. 394; White v. Skinner, 13 Johns. 301; Randal v. Van Vechten, 19 id. 59; Taft v. Brewster, 9 id. 334; Tippits v. Walker, 4 Mass. 595; French v. Reed, 6 Binney, 308; Walker v. Smith, 4 Dal. 389.
It would have been difficult in this case to have made the defendant responsible to the plaintiff, if he had purchased for plaintiff, lands or lots not worth the purchase money given, or in other words, had made a bad bargain, because this was referred to the best judg*433meat of the defendant; and to make him liable it should appear that he exercised a perverse and willful judgment against reason, to the prejudice of his principal. He had no discretion as to the kind of property to be purchased, or as to the person for whom purchased; in these respects he was positively limited, and a departure from his obligation in either, made him immediately liable to plaintiff. The misrepresentation by defendant, of an important and material fact, to his principal, unexplained, was a fraud upon him, and at his election would rescind in tato the agreement between them, and entitle the principal to recover for money had and received. These principles are obvious, and were evidently admitted by defendant on the trial, for Ms testimony and evidence on the trial go to obviate their legal effect on Mm, by an attempt to prove that plaintiff, with a full knowledge of his rights, or the means of knowing, confirmed the acts of his agent, the defendant. The legal questions arising in this case seem to be conceded up to the evidence tending to prove confirmation by plaintiff, of the acts of the defendant. It is indisputable that plaintiff might have confirmed the acts of his agent, and agreed to derive benefit under these acts. This implies that plaintiff had knowledge of his rights or the means of knowing, and that the defendant assented, that the land conveyed to him by deed should be held by him for plaintiff’s benefit, otherwise there would be no consideration for the confirmation, and the law will not presume that plaintiff confirmed these improper acts of his agent, without securing to himself the benefit originally intended both by plaintiff and defendant.
Now the court will assume this position, as sustained by reason, justice and law. If full proof were made of confirmation by plaintiff, with a knowledge of his rights, or the means of knowing of the acts of his agent, the defendant, agreeing that defendant should hold the land in Ms name for plaintiff’s use, the defendant assenting, because the confirmation would be complete and perfect *434only on such, or equivalent terms, and the defendant afterward conveyed the land for his own use and benefit, the law would declare this latter act of defendant a direct fraud against the agreement of confirmation, and additional evidence, most forcible in its character, of fraud on the' plaintiff, and misapplication of the fund ah initio ; the assent to the confirmation by defendant a mere pretext ; and the subsequent conveyance by him a consummation of his improper and illegal conduct in the investment throughout. The law, with this state of facts, would rescind ■ the agreement in toto, considering the whole transaction .as one act or breach of faith and misapplication of the fund, and permit the plaintiff to recover for money had and received.
The charge of the district court in answer to an abstract proposition, that the giving of the mortgage (if the plaintiff had previously consented to and confirmed the purchase) would not, of itself, enable the plaintiff to recover in this action for money had and received, was asked for by defendant (plaintiff in error), is not excepted to, and of course, not subject to revision here as error. This court is of opinion, however (and so the district court must have considered on the motion for a new trial), that a mortgage is not only a lien for a debt, but is a transfer of the property itself as a security for the debt. This must be admitted to be true in law, and it is equally true in equity, for in this respect equity follows the law. The estate is considered as a trust, and according to the intention of the parties, as a qualified estate and security. When the debt is discharged there is a resulting trust for the mortgagor. It is therefore, only in a loose and general sense that it is sometimes called a lien, and then only by way of contrast to an estate absolute and indefeasible. Conrad v. The Atlantic Insurance Company, 1 Pet. 441; Bronson v. Kinzie, 1 How. 311.
If the mortgage by defendant to Tomlinson of this land (said to have been purchased partly for plaintiff’s use), executed and delivered in 1839, after the supposed con*435firmation, had been, introduced as evidence, before the defendant introduced any testimony tending to prove confirmation previously by plaintiff, we are of opinion that the district court should have excluded all testimony on that point, the after mortgage by defendant, being to our minds, conclusive against him. The plaintiff could not pursue the land in Tomlinson with his equity, unless he could show that Tomlinson had a full knowledge of Ms right before the delivery of the mortgage to him. So, at most, he had but a hypothetical equity.
In this view of the case, the surprise and newly discovered evidence, as set out in the affidavits accompanying the defendant’s motion for a new trial, could avail nothing, and of course, afford no sufficient legal reason for granting a new trial. It is not necessary to consider here whether the newly discovered evidence or testimony is cumulative or not; or the objection to such testimony, that it is the testimony of a relative, proving the private acknowledgments of the plaintiff, and the various legal rules which influence a court to set aside a verdict and award a new trial, as tMs court is of opinion that there is neither error in the charge of the district court excepted to, nor in its decision and judgment overruling the motion for a new trial.
The judgment of the court below is affirmed, with interest thereon at the rate of seven per cent, per annum from the date of the judgment.