By the Court
BeRby, J."Whether, by the terms- of the wi’itten contract between the appellants and Holton and Nickerson, the note and money were to be deposited with the respondent, subject to the order of the appellants absolutely and immediately, or upon the full performance of the contract by them, we need not now consider. The affidavits used below on the part of the respondent have some tendency to show that the respondent honestly believed that it was his duty to retain the money and note, until full performance of the contract by the appellants, by the delivery and setting up of the machinery contracted for. Indeed, there is some ground to infer from the complaint and affidavit for attachment, that the appellants had a similar understanding of the contract. And that such was the appellants’ understanding, would seem to be further inferable, from the fact, that according to the affidavit of Link, (a witness for the appellants below,) the appellants would not *247have shipped the machinery, had not the respondent written them a letter, in which he stated that the money and note had been deposited with him, “ to be paid over when the engine arrives and is set up.” Shipping the machinery upon this letter, would appear to furnish some reason to suppose that they acquiesced in the respondent’s construction of the contract, as thus expressed. Even it in entertaining this honest belief the respondent misconstrued the contract, he could hardly be guilty of fraud towards the appellants in refusing to hand over the note and money so long as the contract was not folly performed by them. And even if it had been fully performed by the appellants, but whether it had been or not was a matter of dispute between Holton and Nickerson and the appellants, and the former had forbidden the respondent to hand over the note and money, if the respondent did not know that the contract had been performed, or was in doubt as to its performance, then he would not be guilty of fraud in retaining the note and money. The affidavits introduced below by the respondent, tend to show that the contract had not been fully performed by the appellants ; that Holton and Nickerson had so informed the respondent, and had on that account forbidden him to hand over the note and money. The same affidavits also tend to show that the respondent is solvent, and is ready and willing to hand over the note and money whenever he shall understand it to he his duty to do so; and they also deny any fraudulent action or intent on the part of the respondent.
On the other hand, the affidavits introduced by the appellants, materially conflict with those introduced by the respondent, and tend to establish a very different state of facts.
Under all the circumstances, we cannot say that the Judge below erred in determining that the appellants did *248not make out a case for an attachment. Fraud is not to be presumed againt the respondent, and there is ho such preponderance of testimony -on the part of the appellants, no such indications of falsehood in the defendant’s affidavits, as would warrant us in saying that the action of the Court below was erroneous.
Order affirmed.