Peake

Plaintiff sues to recover the sum of seven hundred and seventy-one dollars and fifty cents, the amount of defendant’s check, as follows:

The amended complaint alleges due presentation to the bank, its refusal to pay, notice of nonpayment to defendants before action commenced, notice by defendants to the bank before presentation for payment not to pay said check if presented, and nonpayment by defendants.

The answer alleges want of consideration for the check, and also sets up facts tending to show that plaintiff obtained the check by fraudulent representations. The court found the allegations of the complaint to he true; and found that the check was not given without consideration, nor was it issued through plaintiff’s false or fraudulent representations, and that the allegations of fraud are not sustained by the evidence. Judgment passed for plaintiff, from which and from the order denying motion for a new trial defendants appeal.

The evidence of plaintiff tends to establish the following facts: One Scoggins executed his note to the German Savings & Loan Society of San Francisco, which he secured by mortgage to it *609 on certain real estate in Colusa county; Scoggins died,…