Maxson

Plaintiff appeals from the judgment and from the order denying him a new trial. He brought his action against the defendant Llewelyn as maker, and defendant George Larrabee as indorser, to recover upon a negotiable instrument in the form of a check.

Larrabee was a special or soliciting agent of the Mutual Life Insurance Company of Hew York, of which corporation Maxson was the manager for Southern California. The check was given by Llewelyn in payment of the first year’s premium upon a life insurance policy to be issued by the company to him. By its terms the check was made payable upon a day after the date upon which it was agreed the policy should be delivered. Plaintiff pleaded that he was the owner of the check, and that he had purchased it for value before maturity. For answer the defendant made denial, and set up facts constituting misrepresentation and fraud in the procurement of the check, and showing at least a partial failure of consideration. He also averred that plaintiff took the check with knowledge of these facts.

TJpon the trial, he proved that Larrabee represented to him ■ that his company would issue an exceptionally and peculiarly *197 favorable policy to him…