On Motion for Rehearing.
After a more thorough consideration of this case we are convinced that we erred in sustaining the action of the trial court in overruling the defense of the statute of limitation of two years interposed by appellant .¿Etna Casualty & Surety Company and rendering judgment against it in favor of plaintiff, the city of Dallas.
As shown in our original opinion, the decision of the Supreme Court in the former suit in favor of Hopkins became final on March 15, 1928. After that decision was rendered, plaintiff, the city, of Dallas, had the lawful right at any time to demand of West, the district clerk, a return of the amount it had deposited with him primarily for the benefit of Hopkins, but no demand was made therefor until the latter part of June or the 1st of July, 1932, more than four years, and this suit was not instituted to recover the deposit until October 13, 1933, which was approximately five years and seven months after plaintiff had the lawful right to demand the return of the deposit. But since the obligation of the clerk was implied rather than contractual, with no date fixed for its performance, we believe a demand of him therefor within a reasonable time was an integral part of plaintiff’s cause of action therefor, and was necessary in order to set in motion the statute -of limitation in his favor and in favor of his bondsmen. 28 Tex. Jur. pp. 138 to 143; 17 R. C: L. par. 122, p. 756; par. 167, p. 800.
But we are also convinced that it did not lie with the city of Dallas to toll the running of the statute of limitation at its pleasure and without any excuse offered therefor, whether the clerk was holding the money as a trustee and liable therefor as such under his official bond or liable a bailee under the common-law rules applicable to bailments.
Plaintiff was in no position to invoke the equitable doctrine that a trustee or bailee, when sued for a trust fund that has been placed with him, cannot rely -upon the statute of limitation as a defense until he repudiates the trust and brings knowledge thereof home to the beneficiary, with no excuse offered for its laches in sitting idly by for more than four years before demanding a return of the deposit and more than five years before instituting the suit, during which time the deposit was unlawfully dissipated by the clerk. 17 Tex. Jur. par. 50, p. 51.
The following announcement in 28 Tex. Jur. par. 59, p. 142, is well supported by decisions of ■ this state cited in the text: “Where a demand is a condition precedent to suit, the plaintiff may not, by failing or refusing to perform the condition, toll the running of the statute and reserve for himself the right to sue within the statm tory period from such time as he decides to make a demand. On the contrary, it is the general rule that in such a case a demand must be made within a reasonable time after it may lawfully be made. What this reasonable time is depends upon the circumstances of each case, and in this respect no definite rule has been laid down. The question is one of fact for the jury, and not of law for abstract judicial decision. Ordinarily, however, in the absence of mitigating circumstances, a time coincident with the running of the statute will be deemed reasonable, and if a demand is not made within that period the action will be barred.”
To the same effect are the following authorities in other states: Purcell Bank & Trust Co. v. Byars, 66 Old. 70, 167 P. 216, and other authorities there cited.
We adhere to the conclusion expressed in our original opinion, that the statute of limitation of two years is controlling in this case, and, for the reasons stated above, the motion of appellant .¿Etna Cas*832ualty & Surety Company for rehearing is granted, the judgment rendered against it by the trial court is reversed, the former judgment of this court affirming it is set aside, and judgment is here rendered sustaining its defense of limitation of two years, and denying the city of Dallas, plaintiff below, the relief prayed for as against appellant .¿Etna Company. In all other respects, our former judgment is left undisturbed.