
    Schmidt v. Taft et al.
    (Decided November 20, 1933.)
    
      Mr. Amos P. Foster and Mr. Edward A. Schott, for plaintiff in error.
    
      Mr. Carl W. Rich, for defendant in error Herman E. Eienfang.
   Ross, J.

This is a proceeding in error from the Court of Common Pleas of Hamilton county. A suit was filed in that court by the plaintiff in error to cancel a contract with a building contractor, by the name of Taft, and to recover from certain of his • creditors the amount of a down payment made under the terms of this contract.

Briefly stated, the record shows that shortly after the payment was made under the contract to build a bouse for plaintiff, Caroline Schmidt, the creditors of the contractor brought pressure to bear upon him, resulting, first, in the turning over of this money to a single trustee; and, second, later, to a committee who distributed it among such creditors.

It is the claim of the plaintiff that the contractor never intended to perform his contract, or use the money in the construction of the house. The record shows, however, that certain work was done toward the construction of the house, and we cannot find in the record evidence of fraud sufficient to warrant a finding that the money of the plaintiff was obtained by false pretenses, or with an intention not to perform, or a knowledge in the contractor that he could not perform. Such being the case, upon payment to the contractor the money became his and was subject to disposal by him. The contract did not limit the use of the money.

The plaintiff is therefore relegated to an action for a breach of contract. The fact that such remedy is fruitless cannot be substituted for such facts as would justify Cancellation of the contract and pursuit of the fund into the hands of creditors of the contractor.

Judgment affirmed.

Hamilton, P. J.? and Cushing, J., concur.  