
    [No. 3737.]
    Black v. Smith.
    The judgment of the court of appeals affirmed, and the opinion of that court (Smith v. Blade, 9 Colo. App. 64) is adopted as the opinion of this court.
    
      Appeal from the Court of Appeals.
    
    Mr. W. S. Deckeb, for appellant.
    Messrs. Babtels & Blood and Mr. Hugh Butleb, for appellee.
   Peb Cubiam.

One, if not the chief, object of this action brought by the appellant here, who was appellee in the court of appeals and plaintiff below, was to obtain a decree requiring tbe defendant to execute release deeds of certain lots, the legal title of which was in the plaintiff, subject to an incumbrance of a trust deed, which, inter alia, provided that on the payment of certain sums of money by the legal owner he was entitled to have his lots released from the incumbrance. The complaint alleged a compliance upon the part of the plaintiff with his obligation, and a refusal of the defendant to perform.

The trial court found for the plaintiff, and ordered the defendant to execute the releases ; but upon a review in the court of appeals, the decree was reversed. To set aside this judgment of reversal the plaintiff brings the case here on appeal. The opinion of the court of appeals is reported in 9 Colo. App. 64, (47 Pac. Rep. 894).

After an attentive examination of the voluminous record, of the original briefs of counsel, and the additional ones filed in this court, we are satisfied that the conclusion reached by the court of appeals is right. In the opinion referred to is a full and clear statement of the complicated facts, and a lucid exposition of the legal principles involved. The statement of the court therein found, and its reasoning, are so satisfactory and conclusive that we shall not attempt to add thereto, and if we did, it would be largely repetition.

Under the pleadings the essential thing which the plaintiff must prove in order to obtain any relief was that he deposited in- hank to the order or credit of defendant Smith the sum of money admitted to be due. The trial court, as shown from its written opinion brought up, in the record, did not so find, but “ supposed ” that such was the nature of the deposit. But, as said by the learned writer- of the opinion of the court of appeals in the following extract, which tersely presents the vital issue:

“Nothing further is contained in the opinion, either by way of findings or otherwise, respecting the deposit. We are therefore unhampered by the rule that the findings, of the court on questions of fact are conclusive. The court did not find directly that Black’s money was deposited in the bank to the credit of Smith, or to the credit of the holder of the note. He assumes it; but there cannot be found between the four corners of the record any evidence which wouid justify a finding that the money was thus deposited.” ********

“A deposit in the bank which could, under the conditions on which it was put in, to be drawn out, and was drawn out, by the depositor, Leet, is in no legal sense a compliance with the terms of the contract. The deposit must have been irrevocable, or, if not irrevocable, must have been so made as to discharge both Black and Leet from any further responsibility, which must have been shifted by the transaction to the bank itself, or else it was of no value for any purpose. Smith has a right to insist on either the land or his money. His title can only be divested by an exact observance of the contract by which he agreed to surrender his interest in the land. We are unable to -discover any such compliance in this record.”

It follows that the judgment of the court of appeals should be affirmed, and it is so ordered.

Affirmed.  