#### E. H. Bayley, Defendant in Error, v. A. E. Coy, Plaintiff in Error.

Gen. No. 21,092.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.

Heard in this court at the March term, 1915.

Affirmed.

Opinion filed December 6, 1915.

Rehearing denied December 20, 1915.

Statement of the Case.

Action by E. H. Bayley, plaintiff, against A. E. Coy, defendant, in the Municipal Court of Chicago, to recover back money received by defendant with which to purchase stock and misappropriated by him. To reverse a judgment for plaintiff for $787.50, defendant prosecutes this writ of error.

Defendant, it was claimed, was the agent of plaintiff to purchase 35,750 shares of stock of the Mina Grand Mining Company, for which purpose plaintiff gave him $1,787.50, upon the representation of defendant that such stock could be bought for that sum and no less. Subsequently plaintiff ascertained that defendant bought 40,000 shares of said stock for $1,000 and applied to his own use, unbeknown to plaintiff, the remaining $787.50, together with 4,250 shares of the stock.

It appeared that for a long time defendant had been in the confidence of plaintiff in various deals in stock and that he was in the habit of confiding in defend*434ant’s representations in regard to them. The plaintiff lived in Minnesota, while defendant lived in Chicago. Defendant wrote plaintiff under date of March 22, 1906: “lam having the stock transferred as per your instructions and will send the same to you by registered mail this afternoon. You must promise to never say to any one anything about the price paid nor from whom you did the business with. You know I am supposed to do what I can to sell treasury stock for 20c per share, but I could not let the opportunity pass to let you in on this deal.”

Abstract of the Decision.

1. Principal and agent, § 8 * —when evidence sufficient to show existence of relation. In an action to recover back money paid to defendant as plaintiff’s agent to purchase stock, evidence held sufficient to prove that defendant acted as plaintiff’s agent in the transaction.

2. Limitation of actions, § 20 * —when statute begins to run against action based on fraud. In an action at law based on defendant’s fraud, the statute of limitations will not begin to run until plaintiff discovers the fraud, or might, by the use of reasonable diligence, have discovered it.

3. Frauds, § 45 * —when laches not defense. The rule applicable to an action in equity, that plaintiff’s failure to use reasonable diligence to discover the fraud practiced on him is excused so as to prevent his cause of action from being barred by the statute of limitations or laches where defendant sustained a relation of trust and confidence, making it his duty to disclose the truth to plaintiff, is equally applicable to an action at law based on defendant’s fraud.

4. Fraud, § 112 * —when evidence sufficient to show. Evidence that a defendant who had received money from plaintiff with which *435to purchase stock failed to inform plaintiff of the real price paid for the stock, and wrote plaintiff a letter calculated to deter him from making inquiries on his own account, is sufficient to prove fraud on the part of defendant.

*434Harris F. Williams, for plaintiff in error; W. Scott Hodges and Eldon M. Votaw, of counsel.

Charles Daniels and Sumner C. Palmer, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.