Braun

This action was brought to recover $800.75 for goods sold and delivered by plaintiff’s assignor to defendant at his special instance and request. Plaintiff recovered judgment, and this appeal is prosecuted from the said judgment. The only question is as to a check of $700 given by defendant to plaintiff, which defendant claims constituted a payment under the circumstances as disclosed by the record.

On the twenty-eighth day of October, 1907, defendant gave to plaintiff’s assignor a check on the California Safe Deposit and Trust Company for the sum of $700. The check was presented for payment during banking hours on the thirtieth day of October, 1907, but was not paid for the reason that the bank had become insolvent and had just closed its doors a few moments before the cheek was presented. It is admitted that the check was presented within a reasonable time, or at least, no question is made as to delay in presenting the check. Written notice of the dishonor of the check was not given to the defendant until December 10, 1907; and the sole contention of defendant is that by reason of the delay in giving the notice defendant cannot be held liable for the indebtedness to the extent…