Alhadeff

This action was brought to recover the sum of $2,075 on a post-dated check in favor of plaintiff, executed by defendant. From a judgment against him defendant has appealed.

Appellant contends that the findings are not supported by the evidence. The fact of the issuance and delivery of the check dated January 3, 1929, on or about the fifth day of December, 1928, is admitted by appellant, as is also the fact that prior to the time it .was given respondent had loaned him $1975, and at the time the check was given the parties agreed upon the sum of $100 as interest, making the amount for which the check was given. It was stipulated that the check was deposited for payment on January 3, 1929, but that nothing had been paid on it. With this prima facie case, the plaintiff rested. Appellant set up as an affirmative defense that the loan was made for use in defendant’s cleaning and tailoring business “to be repaid therefrom at some future, undetermined date, depending upon the ability of the said business to pay the said sum’’ and that on or about December 5, 1928, “plaintiff falsely and fraudulently stated and asserted to defendant as follows: ‘Give me a post-dated check.. I will hold…