delivered the opinion of the court.
*5542. Trover and conversion, § 38 * —when evidence as to disbursement of money erroneously excluded. In an action to recover for conversion of money alleged to have been procured from plaintiff by false representations, where it appeared that the money alleged to have been converted was a part payment on a subscription for stock in a bank which was never organized, and where the subscription agreement contained a provision that a proportion of such amount might be used for organization purposes, evidence that money had been disbursed for organization purposes by defendants held erroneously excluded.
3. Assumpsit, § 50 * —when action for money had and received lies upon failure of consideration. A person who pays money for shares in a company which never comes into existence pays it on a consideration which fails, and may recover such amount in an'action of money had and received unless it be shown that he has consented to or acquiesced in the application made of such money by those into whose hands it comes.