OPINION

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 can not 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, feuch 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.

The judgment is affirmed.