The opinion of the court was delivered by

The company contends that the court erred in holding that this item of property was legally assessed, in that as the company made a statement and *663list of its property, as required by section 7586 of the General Statutes of 1901, the assessor had no legal right to make out a list himself, as provided by section 7588 of the General Statutes of 1901.

It appears from the evidence of Mr. Connelly, the president of the company, that the company received this item of money from its customers and deposited it in a bank with the general account of the company, and subject to check, the same as other money of the company ; that the company checked on this account for its general expenses, including new material, and did not always have the full amount thereof in the bank, but used the same as any other money belonging to the company; that at the time the assessor called upon him he informed the assessor that the money was deposited in the bank and that he refused to list it in the assessment statement.

If the money was liable to assessment, then the assessor was authorized under'section 7588, swpra, to list and value this item of property, although the listing officer of the company had made a list and státement as required by section 7586, supra. It follows that this assignment of error is not well taken.

It is contended that this item of money was not the property of the company, but belonged to its customers. The company was seeking to enjoin the collection of the tax, and the burden of'proving its claim that this item of money was not its property rested upon it, and it offered no evidence to prove the fact other than the contract under which it was received and the opinion of the president, which was not competent evidence. Under the conditions of the contract every dollar of the money may have been absolutely the property of the company; and, at least until the company offered evidence to show what amount of it, if any, the company was under obligation to return to its customers, the money should be presumed to be entirely the property of the company. It used the money as its own, and did *664not, in fact, hold it in trust, but treated its liability to return any portion of it as an indebtedness.

By the terms of the contract under which the fund in question was assembled the $5 deposited by each customer was a pledge so long as no unpaid obligation accrued against the customer, and to the extent any default of payment occurred the $5 became a payment thereon. The owner and not the holder of a pledge should pay the taxes thereon, and, if any portion of the $4800 had by the terms of the contract become a payment to the company, to that extent it was the money of the company and the company should pay taxes thereon, and it was not entitled to maintain an injunction against the collection of the taxes as levied until it had tendered payment of such portion. The company offered no evidence as to its rights in the fund on the first of March of the year for which the taxes were levied, and neither pleaded nor offered proof of a tender of payment on any portion of the fund. In short, if the plaintiff had any cause of action it failed to pro-, duce the evidence in support of it. (See Hagaman v. Comm’rs of Cloud Co., 19 Kan. 394.)

The judgment is affirmed.