Melander

This is an appeal from the judgment entered upon and after an order sustaining the demurrer to the answer of the defendant.

The action was brought by the plaintiff to recover from the defendant the sum of $405.98, which is alleged to be a balance remaining of a deposit made by one Walter B. Lomax, with the latter.

The complaint alleges that “on or about the 11th day of August, 1909, the said defendant . . . appropriated said balance of $405.98 to its own use and benefit, and debited the account of said Walter B. Lomax with said sum of $405.98 and refused to pay said Walter B. Lomax said sum of $405.98, or any part thereof, although demand therefor has been made by the said Walter B. Lomax.” It is further averred that, prior to the commencement of this action, “and for a valuable consideration, the said Walter B. Lomax transferred, sold and assigned to the plaintiff herein all right, title and interest in and to said sum of $406.98, . . . and any and all right of action against the defendant therefor, and said plaintiff is now the owner and holder thereof.”

The, defense set up in the answer is founded upon the alleged right of the defendant to apprópriate the money sued for as…