Hill

After setting out the contract sued upon, and stating the facts in respect to the purchase of the stocks which constituted the subject-matter of the joint venture between the plaintiff and defendant, and averring the failure of the enterprise, the complaint alleges, “That after said money became due, and before the commencement of this action, plaintiff made due demand of said defendant for said sum of money; but the defendant has not paid the same, or any part thereof.” One of the defenses relied upon is the Statute of Limitations; and on the former appeal ( 42 Cal. 160 ), we held that the plaintiff’s right to maintain the action did not occur until he had first offered to account with the defendant, of and concerning the stocks in the hands of the plaintiff; and until such offer to account, he could not legally demand payment of the balance due from the defendant. On the present appeal, the defendant contends: 1st, that the complaint contains no sufficient averment of an offer to account; and 2d, if the complaint be sufficient in this particular, that there was no proof at the trial of such offer.

If a special demurrer had been interposed to the complaint on the ground that it…