Fergus

The respondent paid to an agent of appellant, as the purchase price of certain shares of its stock, to be taken from its treasury, the sum of $375. The agent diverted the money, applied it to his own use, and it never was paid to appellant. Respondent made demand upon appellant for the delivery to him of the stock he had bought and the demand was refused. He then demanded a return of his money and, that demand being also refused, he commenced this action for its recovery. The trial court rendered judgment in his favor. The appeal is from the judgment.

The purchase price of the stock was paid on July 6, 1912, and this action was commenced on September 19, 1914, after demand made on September 16, 1914, for a return of the money. The appellant contends that the cause of action is barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure, wliich fixes a limitation of two years for the commencement of actions upon a liability such as is here sued on. A cause of action on such a liability ordinarily accrues only upon a demand made to the person upon whom the liability rests, requiring him to perform his obligation ; but there is a long line of cases to the…