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AND AGENT ASSUMPSIT-EVIDENCE.-In action of assumpsit, when the defense is that certain brokers who dealt both with the plaintiff and with the defendant dealt with the plaintiff as principals on their own account, and not as agents of the defendant, if evidence is offered by the plaintiff to show that such brokers were doing a general brokerage business, and did not furnish money as principals to any persons, including certain third persons named, evidence is admissible for the defendants in rebuttal to show that such brokers did furnish money to such third parties as principals, and not as brokers.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Wilson & Wilson, and Loughborough & Newhall, for Appellant.

The mere acceptance of a check is not payment of the debt for which it is given, but it is always taken subject to payment at the bank in due course of business, and upon that condition alone. (2 Benjamin on Sales, sec. 1083, p. 944; Story on Bills, sec. 419; Weddigen v. Boston E. F. Co., 100 Mass. 423; Whitney v. Esson, 99 Mass. 308; 96 Am. Dec. 762; Small v. Franklin M. Co., 99 Mass. 277.)

Pillsbury & Blanding, and F. C. Lusk, for Respondents. THORNTON, J.-Appeal by plaintiff from the judgment and order denying its motion for a new trial.

The action was brought by plaintiff to recover of respondents the sum of $52,401.60, and interest, for money lent and advanced to the latter by the former.

The action was commenced against William Dresbach and Hugh J. Glenn, as copartners under the firm name of William Dresbach, but in consequence of the death of Glenn, and also of the first administrator of his estate, N. D. Rideout, the second administrator was substituted as a party, and the action came to be against Dresbach and Rideout, administrator of the estate of Glenn, deceased.

It is argued that the evidence was insufficient to justify the verdict. We have read and considered the argument of the counsel for plaintiff on this point, and have weighed the testimony, and are of the opinion that the evidence is of such a character as to forbid this court from sustaining this contention. There is evidence tending to prove that plaintiff dealt with Helmrich and Hansen as principals, and that their loans were made to them, and not to Dresbach and Glenn; and there is also evidence tending to show that Dresbach and Glenn were principals, and that Helmrich and Hansen were their brokers and intermediaries, and obtained these loans for their account. In other words, the evidence on this point is conflicting, and under the well-settled rule of this court, it cannot interfere with the verdict on the ground urged.

The defendants contend, first, that Dresbach and Glenn transacted the business matters involved herein with Helmrich and Hansen as principals, and not through Helmrich and Hansen as the agents of Dresbach and his partner; and secondly, that if the business was transacted between the plaintiff and Dresbach and Glenn through Helmrich and Hansen as their agents, the indebtedness sued for herein was paid.

It appears that the indebtedness sued for herein was contracted by advances made on wheat shipped by Dresbach and Glenn on the ship Scandia. The business was carried on in this way: Dresbach would put the wheat on board the Scandia, bound to a foreign port, in parcels of several thousand sacks; for each parcel so placed on board, the mate of the vessel would give a receipt, specifying the number of sacks, and that they were received of Dresbach. The latter would hand over these receipts to Helmrich and Hansen, who would take them to the plaintiff, and on these receipts, which were retained by plaintiff as security, it would make the advances.

The advances seem to have been made on each parcel of wheat for which a receipt was issued by checks drawn

LXXVIII. CAL.-2

payable to the order of Helmrich and Hansen. When the ship was fully laden, or it had received all the wheat to be shipped on it, Helmrich and Hansen would obtain from the plaintiff the mate's receipts and deliver them over to the master, who would give a bill of lading in their place, and take up or retire the mate's receipts. A bill of exchange would then be drawn by Dresbach against the wheat shipped, and delivered to Helmrich and Hansen along with the bill of lading and other documents. The bill of lading and other documents would be attached to the bill of exchange, and go forward with it. Helmrich and Hansen would then sell the bill of exchange, and with the proceeds derived from its sale return to the plaintiff the amount of its advances. Sometimes the bill of exchange was sold to the plaintiff. In such case it would retain the amount of its advances, and if the amount of such proceeds was not sufficient to reimburse plaintiff, Helmrich and Hansen would pay the balance due in money. In case the proceeds exceeded the amount due for advances, the plaintiff would pay the surplus to Helmrich and Hansen.

In the case of the shipment by the Scandia, the master was ready to deliver the bill of lading on the 25th of September, 1882. On that day Hansen, who attended to the out-door business of his firm, called on the plaintiff and procured from it the mate's receipts on which advances had been made, took them away with him, and returned with the bill of exchange drawn as usual, and with the bill of lading and other documents. The plaintiff, for the reason that it then held as many bills on the house on which the bill on the shipment per Scandia was drawn as it was willing to take, declined to purchase this bill. Hansen then had to sell the bill, and with its proceeds return the advances. A settlement was on the day above mentioned had between the plaintiff and Hansen, and it was found that there was due for the advances per Scandia a sum of $44,000. On the same day the plaintiff sold

to Helmrich and Hansen a bill or bills of exchange on Hong-Kong for £4,000 for $19,739.30, and delivered this exchange to Hansen. For the sums above mentioned, amounting to $63,739.30, Hansen drew in the name of his firm a check on the Pacific Bank, and delivered it to the plaintiff. This check was received about three P. M., or about three minutes before, at an hour too late to present it for payment at the Pacific Bank on that day, but some time on that afternoon the plaintiff sent this check to the bank for certification, which was refused.

The check was on the next day deposited to credit of plaintiff with the Bank of British Columbia. Hansen informed the manager of the plaintiff that the check would not be paid, and asked for further time. Hansen requested that plaintiff take up the check and grant further time, and the plaintiff, on this request, sent its check on the Bank of British Columbia for $63,000 to the Pacific Bank, to be passed to the credit of Helmrich and Hansen, that the check of the latter for $63,739.30 might be paid. The Pacific Bank then paid the check of Helmrich and Hansen and returned it to the plaintiff, who delivered it to Helmrich and Hansen. It does not appear the latter ever paid anything on this check, but that it was in fact taken up by plaintiff. Nor was any portion of the advances made by the plaintiff on the wheat shipped per Scandia ever paid to it by any one, unless the check drawn by Hansen on the 25th of September, 1882, was received by the plaintiff in absolute payment and discharge of such advances.

In reference to this payment by check, the plaintiff by its counsel requested the court to direct the jury as follows: "When a check is given in payment of a debt, it is only accepted on condition that the check be paid, but if dishonored, the creditor may resort to his original claim, on the ground that there has been a failure of the condition on which the check was taken."

The court refused to give the foregoing, and gave to

the jury the following: "If a promissory note, bill, or check of a third person be accepted by a creditor by his own voluntary act or choice, as payment and in satisfaction of a debt, such acceptance would establish payment of such a debt."

The plaintiff excepted to the refusal of the court to give the requested direction, and also excepted to the giving of the instruction just above set forth.

The court below clearly erred in refusing plaintiff's request. The check in this case was dishonored. If it was not presented to the Pacific Bank for payment, but only to be certified, it distinctly appears that it was not presented for payment, because the plaintiff was told by Hansen more than once on the day following its date that it would not be paid. It was said in Smith v. Harper, 5 Cal. 330: "When the holder of a note accepts a draft or note in payment, it has usually been held that he is not bound to give up the note before payment of the draft or check." It has been repeatedly held by this court that the acceptance of a note for a debt does not discharge the debt unless expressly agreed to be payment; that in such case the right of action on the debt is suspended until the maturity of the note given, and suit may be brought on the original debt in case of the non-payment of the accepted note. (See Brewster v. Bours, 8 Cal. 501; Griffith v. Grogan, 12 Cal. 317; Higgins v. Wortell, 18 Cal. 333; Crary v. Bowers, 20 Cal. 89; Smith v. Owens, 21 Cal. 11; Brown v. Cronise, 21 Cal. 386; Welch v. Allington, 23 Cal. 322; Mitchell v. Hockett, 25 Cal. 542; 85 Am. Dec. 151; Brown v. Olmstead, 50 Cal. 162; Crawford v. Roberts, 50 Cal. 236.)

The language used in the opinion is, unless it is expressly agreed that the note is accepted as payment, it is not payment, and the debt is not extinguished. As in Griffith v. Grogan, supra, it was said by Field, J., speaking for the court in regard to a note, "Unless received by express agreement as payment, it did not extinguish the debt."