Edwards

This appeal from a judgment in favor of the defendant is taken on the judgment-roll. The basis of the action was a check for four thousand dollars, drawn on the defendant bank by one B. L. Liveson on February 28, 1917, payable to the plaintiff, and intended as a gift to him of the amount mentioned. On March 2, 1917, plaintiff deposited this check in his bank at Long Beach, and on the following day it was presented to the defendant bank for payment, which was refused. Liveson died on March 4, 1917, and the cheek was never honored by the bank.

The complaint, as originally framed, contained three counts: (1) based upon the alleged refusal of defendant to pay the check without any cause or reason; (2) alleging that the defendant, for the purpose of defeating the gift and maliciously preventing the said B. L. Liveson from accomplishing his desire to give the money to plaintiff, and for the purpose of keeping the amount in the estate of Liveson in order that the defendant, as executor of his will, might receive larger fees for administering the estate, refused to pay the check, to the damage of plaintiff in the sum of four thousand dollars; and (3) for money had and received from B. L.…