This is an action brought in the district court of the county of Waseca to compel the defendant to account for one-half of certain shares of stock, bonds, and money which the complaint alleged he had received as trustee for the plaintiff. The cause was tried by the court without a jury, and facts found to the effect following:
In January, 1903, in an action then pending in the district court of Matagorda county, Texas, a judgment was duly rendered therein in favor of the plaintiff and defendant in this action against the Nile Valley Canal Company, a Texas corporation, hereinafter referred to as the “Canal Company,” for $82,595.62, which, was the property' of the plaintiff and defendant herein, share and share alike. The court in *480and by the judgment ordered all the properties of the Canal Company to be sold at public auction to satisfy, among other judgments duly given and entered in such action, the judgment of the parties hereto, and for such purpose duly appointed a master to make such sale. Thereafter, and on January 31, 1903, the parties hereto entered into a written contract with the Hurd-Ford Investment Company, also a Texas corporation, and hereafter referred to as the “Investment Company,” a copy of which is a part of the complaint herein and designated as “Exhibit A.” The parties hereto by such contract, in consideration of 100 shares of the Sabine Canal Company, a Delaware corporation with a canal at Vinton, Louisiana, gave to the Investment Company the option either for the purchase of their judgment or for the purchase, as provided by section 2 of the contract, of the property of the Canal Company in case it should be sold to them at the sale thereof, on the terms stated in the contract.
In order to carry out this agreement on the part of the parties hereto, it was necessary that Ri Miller, their agent, who was to be present at the master’s sale on their behalf, should be furnished sufficient funds with which to pay for the properties of the Canal Company, if the same should be struck off to him at such sale. It was necessary for this purpose to advance to him the sum of about $12,000. It was known to the parties at the time of the execution of Exhibit A, and when preparations were being made for carrying out the same by a purchase at such judicial sale, that if the Investment Company should perform its part of the said agreement and at once purchase and pay for the properties, it would be necessary to advance such money only temporarily, but that, in case the Investment Company failed so to perform, the money so advanced would remain permanently invested in the purchase of the properties before mentioned, besides that already so invested by the plaintiff and defendant.
Several consultations were had prior to such sale between the parties, in which the defendant requested and urged the plaintiff to furnish his share of the money necessary to purchase the property, and the plaintiff expressed his unwillingness and inability so to do; but the plaintiff never positively refused to make such advances, nor did the defendant ever in any manner notify the plaintiff of any intention on his part to purchase the property for his own exclusive benefit, ei*481ther in his own name or through some one else, in case plaintiff made default, or that he would in that event treat him as having abandoned all interest in the judgment and in whatever steps were taken to realize therefrom. In fact, plaintiff did not furnish any money for such purchase.
The defendant and his brother Guy Everett were, at the time of the transaction herein referred to, members of the milling firm of Everett, Aughenbaugh & Co., and at the request of the defendant Guy Everett drew out of the funds of their company the sum of about $12,000 and procured a draft for the same and gave it to the defendant to send to Miller, who was defendant’s father-in-law, to be used in making the purchase of the properties of the canal. After such purchase and the sale to the Investment Company, as hereinafter mentioned, the money was returned to the defendant and by him paid over to the firm of Everett, Aughenbaugh & Co. for and on account of Guy Everett, to replace the money so withdrawn for such purchase. At the time of such purchase Guy Everett was in fact the owner of $5,000 of the original investment in the Canal Company held in the name of the defendant, but without the knowledge of the plaintiff. On the delivery to the defendant of the bonds of the Gravity Canal Company as hereinafter mentioned, the defendant turned over in satisfaction of such interest to Guy Everett $5,000 of such bonds.
The draft so procured by the defendant was by him forwarded to Miller; and under and pursuant to the decree all the properties of the Canal Company were sold by the master’s sale, on April 7, 1903, to Miller in his own name, who was then acting under the instructions of the defendant to carry out the terms of Exhibit A. He paid therefor the sum of over $13,000, and the property so purchased was on the same day duly conveyed to him by the master. On the same day Miller, in accordance with the terms of the agreement made by the plaintiff and defendant contained in section 2 of Exhibit A, duly conveyed to the said Gravity Canal Company, the assignee of the Investment Company, by proper deed, all properties so purchased by and conveyed to him. The consideration paid to Miller for such conveyance was $13,-242.50 in money, the transfer and delivery to him of 674 shares of the capital stock of the Sabine Canal Company, of the par value of $100 each (in addition to the shares of such capital stock delivered to the *482defendant at the time the contract, Exhibit A, was entered into), and the execution and delivery to him by the Gravity Canal Company of its first mortgage bonds in the aggregate amount of $42,500, secured by its mortgage, pursuant to the option contained in Exhibit A, by a mortgage executed to the defendant herein, as trustee, of all its property, franchises, and rights of way.
On or about April 11, 1903, all of the money, stocks, and bonds so received by Miller were by him turned over and delivered to the defendant, who has ever since retained the same, except the sum of $5,522.08 paid out by him for costs, expenses, and legal services incurred in and about the business of the Canal Company.- The defendant has ever since had the exclusive possession of all such money, stock, and bonds, and has refused to deliver or pay over any part thereof to the plaintiff, and claims that he has no interest therein. The defendant has collected the interest on the bonds, which are worth their full value, as it became due; but the shares of stock are practically worthless.
As a conclusion of law the trial court found that the defendant, in all of the proceedings stated in the findings of fact, acted for the plaintiff as well as for himself, and that as to all such money, bonds, and stock he holds the same as trustee for himself and the plaintiff, and that he delivered one-half thereof, less sums properly chargeable against -the same to the plaintiff. Judgment was ordered accordingly. The defendant appealed from an order denying his motion for a new trial.
The assignments of error relate to the rulings of the trial court in the admission of evidence, to the sufficiency of the evidence to support the findings of fact, and to the sufficiency of such facts to sustain the court’s conclusion of law. The alleged errors as to rulings of the court on the trial are not urged in the brief of defendant; hence are waived. The record, then, presents the general question: Are the findings of fact sustained by the evidence, and, if so, do they sustain the conclusion of law?
The complaint herein alleged, in effect, that the plaintiff and defendant purchased the property of the Canal Company at the master’s sale, but in the name of Miller, for the use and benefit of both of them. 'This allegation was put in issue by the answer. The complaint also *483contained other allegations of fact, which, if proven, would justify the conclusion that the defendant received money and other property in which the plaintiff was equally interested with himself, and that he is chargeable as trustee of one-half thereof for the plaintiff, and must account for the same to him. The allegations of the complaint must be construed as a whole, and, so construing them, the contention of the defendant, to the effect that upon the pleadings the plaintiff’s sole basis for relief is an allegation in the complaint of the creation of an express trust by the contract of the parties, is not tenable.
The findings of fact are not a departure from the cause of action alleged in the complaint, for the court found evidentiary facts from which the conclusion necessarily follows that Miller acted at the master’s sale as the agent of each of the parties hereto. We are satisfied, after a full examination of the record, that the findings of fact are sustained by the evidence. Indeed, it would seem that the defendant’s letter to the plaintiff, Exhibit K 2, written after the sale of the property of the Canal Company had been closed, must be construed as an express recognition and admission by the defendant of the plaintiff’s interest in the proceeds of such sale; but in any event the findings are fairly sustained by the evidence.
The only other question to be considered is whether the facts, as found by the trial court, sustain its conclusions of law. In this connection defendant urges that the trial court, in effect, found that Guy Everett bought the canal properties at the master’s sale for his own benefit. It is apparent, from the conclusion of law reached by the learned trial judge, that he did not have even a suspicion that he had so found; nor is there anything in the findings of fact that can be reasonably construed as supporting the defendant’s contention. The relation of Guy Everett to the purchase of the properties as disclosed by the evidence was as stated in the findings, and not otherwise.
We hold that the findings of fact are sustained by the evidence, and that they justify the conclusion of law and order for judgment of the trial court.
Order affirmed.