
    A. P. Parr v. A. G. Van Petten.
    No. 13,987.
    (81 Pac. 1132.)
    Error from Thomas district court; Charles W. Smith, judge.
    Opinion filed June 10, 1905.
    Affirmed.
    
      A. P. Tone Wilson, jr., and John Hartzler, for plaintiff in error.
    
      Asa M. Smith, for defendant in error.
   Per Curiam:

A. P. Parr brought this action to recover the sum of $562.50, which the petition alleged he placed in the hands of defendant in January, 1889, under an agreement by which the defendant was to retain the money for a period of ninety days and pay to plaintiff interest at the rate of eight per cent. It was alleged that this agreement was made by correspondence; that the plaintiff made a written demand for this money on or about August, 1889; and that it had not been paid. Plaintiff asked judgment for $1260, with interest from the 16th day of January, 1903. Attached to the petition as exhibits were a number of letters from defendant, evidently for the purpose of tolling the statute of limitations. The court below sustained a demurrer to this petition. The plaintiff prosecutes error.

These letters cover a period from the time the transaction took place until November 10, 1902. This action was commenced in February, 1903. The letters relied upon to toll the statute were artfully and skilfully drawn, evidently with the purpose of not making any expression that could be construed into an obligation or a promise to pay. The statute began to run immediately after the demand was made, in August, 1889. Therefore, in the absence of any act on the part of defendant that would toll it, the action was barred in five years.

Counsel for plaintiff in error make some contention that this was a trust, and that therefore the statute would not run. The action was not on an existing trust, nor was it to declare a trust; it was an action for money had and received.

The judgment is affirmed.  