statute granting a privilege to be sued in the county of one's domicil permits a suit against a private corporation to be brought in any county in which the cause of action, or a part thereof, arose. It has been held that a contract is made in the county from which a telegram, accepting an offer, is sent, and that an action against a corporation on the contract may be brought in that county. Texas Supply Co. v. Clarke (1920) Tex. Civ. App. 220 S. W. 573; Farmers' State Bank v. Sullivan (1922) Tex. Civ. App. 241 S. W. 727. See also Aynesworth v. Peacock Military College (1920) Tex. Civ. App. —, 225 S. W. 866.

In Texas Supply Co. v. Clarke (Tex.) supra, the trial court overruled a plea of privilege of the defendant corporation to be sued in Jefferson county, where it was domiciled. This action of the trial court was assigned as error. It was held by the court of civil appeals, on a motion for rehearing, that the telegram which accepted an offer in the negotiations of the parties was one sent from Comanche county, where the suit was brought. The contract was therefore held to be made in Comanche county, and the order, or judgment, overruling the plea of privilege was affirmed. See to the same effect, Farmers' State Bank v. Sullivan (1922) Tex. Civ. App. 241 S. W. 727.

In Aynesworth v. Peacock Military College (Tex.) supra, the plaintiff sought to recover, under the terms of his contract with the defendant, a part of a sum paid for board, tuition, and incidental expenses of his son. The action was brought in Childress county, and the defendant corporation pleaded its privilege to be sued in Bexar county. In holding that it was error to sustain this plea, the court said: "The plaintiff, by letter and telegram sent from Childress, accepted the offer made by the defendant and transmitted to the plaintiff at Childress by letter and telegram, so that it may be said that the contract was made in Childress. Houston Packing Co. v. Cuero Cotton Oil Mfg. Co. (1920)

Tex. Civ. App., 220 S. W. 394; Cuero Cotton Oil & Mfg. Co. v. Feed

ers' Supply Co. (1918) Tex. Civ. App., 203 S. W. 79. It is settled by the decisions of this state that a cause of action, based upon a contract, arises in part in the county where the contract was made, even if the contract was to be performed or was breached in another county. Phillio v. Blythe (1854) 12 Tex. 124; Western Wool Commission Co. v. Hart (1892) - Tex. -, 20 S. W. 131. So it followed that, if plaintiff's cause of action is based on the contract referred to, he might properly bring the suit in Childress county, where it was made. Rev. Stat. art. 1830, subd. 24; Mangum v. Lane City Rice Mill. Co. (1906) Tex. Civ. App., 95 S. W. 605; Wright v. M. M. Graves Co. (1917) Tex. Civ. App. -, 198 S. W. 998, and other authorities already cited."

Conversely, a contract is not made in the county from which an offer is sent and in which an acceptance, by telegraph, from a point outside the county is received, so as to bring an action on the contract within the exception to the privilege of being sued in the county of one's domicil. Sinton State Bank v. Tyler Commercial College (1921) Tex. Civ. App. —, 231 S. W. 170. But see Watson v. Jackson (1924) Tex. Civ. App. -264 S. W. 603, writ of error dismissed in (1925) 268 U. S. 681, 69 L. ed. 1154, 45 Sup. Ct. Rep. 637, writ of certiorari denied in (1925) 268 U. S. 699, 69 L. ed. 1164, 45 Sup. Ct. Rep. 635.

In Sinton State Bank v. Tyler Commercial College (Tex.) supra, it appeared that, before the plaintiff accepted a check, it sent a telegram from Smith county to the defendant bank in San Patricio county, to ascertain whether it would pay the check. By a telegram sent from the latter county by the bank, it was assured that the check would be paid. Suit was brought by the plaintiff against the bank in Smith county. In holding that the bank's plea of privilege was improperly denied, the court said: "The foundation of appellee's cause of action against appellant was not fraud or trespass on its part, but was its promise to pay the check. As that promise was made in San Patricio county, when

J. E. WHITEHEAD et al., Appts.,

EARL GORMLEY et al.

Oklahoma Supreme Court - January 12, 1926.

(116 Okla. 287, 245 Pac. 562.)

Limitation of actions, § 80 when action accrues.

1. Where G. places a certificate of stock in the hands of W., who is acting as G.'s attorney, and no definite date is fixed whereon W. is to return the certificate to G., a demand by G. or his agent for the return of the certificate is necessary before a cause of action accrues to G. [See annotation on this question beginning on page 178.]

-

Appeal, §§ 665, 667 when verdict set aside.

4. It is the established rule in this state that, where there is any evidence that reasonably tends to support the verdict, it will not be disturbed on appeal, but, where there is an entire

failure of any evidence to support the verdict, the verdict and judgment will be set aside.

[See 2 R. C. L. 194; 1 R. C. L. Supp. 433; 4 R. C. L. Supp. 90; 5 R. C. L. Supp. 79; 6 R. C. L. Supp. 73.]

APPEAL by defendants and intervener from a judgment of the District Court for Oklahoma County (Clark, J.) in favor of plaintiff Gormley in an action brought to recover the value of stock the certificate for which was alleged to have been wrongfully retained by defendant Whitehead. Reversed.

The facts are stated in the Commissioners' opinion.
Mr. W. N. Redwine for appellants.
Messrs. J. C. Helms and Charles H.
Garnett, for appellees:

Where a petition does not show on its face that the cause of action is barred by limitation, then, in order to rely on the statute, the defendant must plead it.

St. Louis & S. F. R. Co. v. Bloom, 39 Okla. 78, 134 Pac. 432; Reaves v. Turner, 20 Okla. 493, 94 Pac. 543; Betz v. Wilson, 17 Okla. 383, 87 Pac. 844; Buchner v. Baker, 65 Okla. 130, 164 Pac. 659; Morrissey v. Shriver, 88 Okla. 269, 214 Pac. 702.

The Statute of Limitations is an affirmative defense, and, where pleaded, the burden of proving it rests on the defendant.

Bradford v. Brennan, 12 Okla. 333, 71 Pac. 655; Torrey v. Campbell, 73 Okla. 201, 175 Pac. 524.

Where a defendant demurs to the evidence in chief, and, after his demurrer is overruled, introduces evidence in his own behalf, and the omission or defect in the plaintiff's case, if any, is supplied by such subsequent evidence, the overruling of the demurrer, if erroneous, is harmless.

Kali Inla Coal Co. v. Ghinelli, 55 Okla. 289, 155 Pac. 606; Oklahoma Hospital v. Brown, 87 Okla. 46, 208 Pac. 785; Johnson v. Underwood, 102 Or. 680, 203 Pac. 879.

If Whitehead's possession was unauthorized and wrongful, then no demand by the plaintiff for the certificate was necessary to his cause of action. It arose at the time such unauthorized and wrongful possession was obtained.

Bilby v. Jones, 39 Okla. 613, 136 Pac. 414; Sale v. Shipp, 58 Okla. 598, 160 Pac. 502.

If the fact of the conversion of the certificate by Whitehead on Octo

ber 1, 1918, was not known to the plaintiff at the time, and was fraudulently concealed from him by Whitehead, then the Statute of Limitations did not begin to run until the plaintiff discovered that fact.

Morrissey v. Carter, 103 Okla. 36, 229 Pac. 511; 17 R. C. L. 856, 857, § 217; Weems v. Melton, 47 Okla. 706, 150 Pac. 720.

After the conversion of property has become complete, the defendant cannot escape liability, nor reduce the actual damages recoverable, by a tender back of the property.

West Tulsa Belt R. Co. v. Bell, 54 Okla. 175, 153 Pac. 622.

Ruth, C., filed the following opinion:

In this opinion Earl Gormley will be designated as plaintiff, J. E. Whitehead as defendant, the First National Bank as the bank, and the intervener, Osage Oil & Refining Company, as "the company.'

On October 3, 1922, plaintiff filed his action against the defendant and the bank, and the petition alleges that on March 15, 1918, plaintiff deposited with the bank certificate No. 301, for 6,000 shares of the capital stock, of the Osage Oil & Refining Company; that the certificate was unindorsed, and was to be held by the bank until January 2, 1919. and was to be returned to plaintiff, by virtue of a written agreement, on or after January 2, 1919, and the bank issued its receipt therefor, wherein it was agreed the bank would return the certificate upon surrender of the receipt; that about

(116 Okla. 287, 245 Pac. 562.)

October 1, 1918, the bank, without the knowledge or consent of plaintiff, or without permission or authority, delivered the certificate to the defendant, and took his receipt therefor, and defendant "retains" same. That demand has been made upon both defendant and the bank for the return of the certificate, but return has been refused.

The petition then alleges as follows: "That said certificate was, on the said 15th day of March, 1918, and ever since has been, and is now of a reasonable value of $6,000, and that by reason of said breach of contract and wrongful and fraudulent acts and conduct of the defendants as hereinabove set forth the plaintiff has been damaged in the sum of $6,000, with interest at the rate of 6 per cent. per annum from the 1st day of October, 1918,"-and prays judgment. There was a second cause of action for the wrongful retention of shares of stock, but this was abandoned and dismissed by plaintiff.

The defendant filed answer consisting of a general denial; a plea of the statute of limitations, and for further answer stated that, even if it be true that plaintiff had possession of the said certificate and the same was deposited with the bank, the certificate was void, for that the company was incorporated under the laws of the state of South Dakota, and § 8, article 17, of the Constitution of South Dakota, provides: "No corporation shall issue stocks or bonds except for money, labor done, or money or property actually received," etc.

That it is void for the further reason that the statutes of South Da

kota provide: "All corporations for profit must issue certificates of stock when fully paid up, signed by the president and secretary, and may provide in their by-laws for issuing certificates prior to the full payment, under such restrictions and for such purposes as their bylaws may provide. Whenever certificates therefor are issued, such shares of stock are personal proper

.

ty, and may be transferred by endorsement by the signature of the proprietor, or his attorney or legal representative, and delivery of the certificate,' etc. Rev. Civ. Code 1903, § 423.

That the certificate is further wholly void, and of no force and effect, because the transactions complained of all occurred in the state of Oklahoma, and the Constitution of Oklahoma provides: "No corporation shall issue stock except for money, labor done, or property actually received to the amount of the par value thereof." Art. 9, § 39.

Defendant's answer then states that the certificate was issued without any consideration therefor, and without the par value thereof having been paid by plaintiff in money, labor done, or money or property actually delivered.

The answer further sets forth that the bank was authorized to deliver the certificate to the defendant, and defendant was fully authorized to receive and hold the same as he was at all times throughout the transactions acting for the Osage Oil & Refining Company, and for the plaintiff Earl Gormley, and had full authority from the company and plaintiff to receive and retain the certificate, and the company had the right to retain the stock under article 1, § 5, of its by-laws until the shares of stock represented by the certificate were fully paid for; that article 1, § 7, of the by-laws of the company, provided the company should have a lien upon any and all certificates of stock until the stock was fully paid for, etc.; that the certificate was issued to plaintiff in consideration of further services by

plaintiff, who had refused to perform the services, and the consideration had wholly failed. Defendant then alleges that the Osage Oil & Refining Company is a necessary party, and prays the company be made a party, and be required to file its answer herein, and defendant tenders the certificate into court.

The company filed its petition in intervention, in which it alleges

that certificate No. 301 was issued by the company, but was never delivered to plaintiff, but was deposited in the bank, by the company, and the receipt taken in the name of the plaintiff, but by the company, and the receipt of the bank was given to the company in the name of plaintiff, and was returned by the company to the bank, and the bank. upon delivery of the receipt, delivered the certificate to the company, and the certificate was the property of the intervener, and was never delivered to plaintiff, and plaintiff never had any right, title, or interest therein.

The intervener then tenders the certificate into court that the title and ownership may be determined, and pleads the Constitution and laws of the states of Oklahoma and South Dakota and the by-laws of the company as set up in the answer of J. E. Whitehead, president of the intervener company, and prays the said certificate be canceled.

Plaintiff for reply alleges collusion between the defendant and the bank, and fraud in the delivery of the certificate, and that he did not discover the fraud until December 17, 1921, when he made demand upon the bank for the certificate, and its return was refused.

The cause was tried to a jury and a verdict returned in favor of the plaintiff and against the defendants Whitehead and the Osage Oil & Refining Company, and these defendants bring this case here upon petition in error and case-made for review. Thirty-one specifications of error are assigned in the defendants' brief, but it will not be necessary to consider all the propositions presented. The first error assigned is that the action was barred by the statute of limitations, and the court should have so held.

Defendants admit in their brief that, if Whitehead was representing Gormley, and holding the certificate for him and for his benefit, then Gormley could not sue for possession of the stock or certificate until demand was made and delivery re

fused. We think this is determined by the defendant's answer, wherein he alleges as follows: "That this defendant was fully authorized to receive and hold said certificate, for the reason that this defendant was, throughout the whole transaction, acting for the said corporation, the Osage Oil & Refining Company, and for the plaintiff Earl Gormley, and each and all of the other parties interested in the deposit of the shares in said bank at the time, and that this defendant did receive said stock from said bank with authority of plaintiff," etc.

The evidence amply sustains the allegations of the answer. It appears the company was organized under the laws of the state of South Dakota with an authorized capital of 2,000,000 of dollars divided into 2,000,000 shares, of a par value of $1 each, and the certificate issued in Gormley's name describes him as the owner of 6,000 shares, and is dated January 18, 1918. On March 22, 1918, plaintiff and thirteen other stockholders agreed to keep their stock off the market and deposit their certificates in the bank, taking interim receipts therefor, and these certificates were to be redeemable at any time on or after January 2, 1919, by surrender of the receipts. This agreement was for the purpose of enabling the company to sell its treasury stock before these fourteen stockholders placed their stock on the market.

Pursuant to this written agreement, Whitehead, who was president of the company personally deposited with the bank certificates representing 524,800 shares of stock, and received the interim receipts, and when he withdrew the certificates he receipted for the same in the names of all the stockholders: "By J. E. Whitehead, Their Attorney." Neither the certificate nor receipt appears to have been in the possession of Gormley, and all the evidence proves conclusively that Whitehead was acting as agent and attorney for Gormley and the other certificate holders, and, this being