indicated that he would take the check with him to Los Angeles, and there collect it through a bank at that city; that plaintiff did not deposit the check in a Los Angeles bank for collection until after the 10th day of June, 1917, on which date the Commercial Bank of Parker became insolvent. The appellants produced substantial evidence tending to support their said contention.

On the other hand, the plaintiff contended that when he, in person, presented the check to the said payor bank on the 1st day of June, 1917, at Parker, the person representing the bank at the time of such presentation of the check stated to plaintiff that heavy demands had been made on the bank's supply of cash, and that they had paid out so much money during the day that they did not have on hand a sufficient amount of money with which to cash this particular check at that time, and suggested to plaintiff that the bank would receive, during the night following, plenty of money, and if he, the plaintiff, would return with the check on the next morning, June 2, 1917, that the bank would then pay the check. The appellee did not wait until the next day, but proceeded to Los Angeles, and then on the 9th, 10th, or 11th day of June, 1917, he deposited the check with a bank for

collection. Plaintiff did not know that the Commercial Bank of Parker became insolvent until after he had deposited the check with the Los Angeles bank.

The plaintiff produced substantial testimony tending to establish all of such disputed facts.

"A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay." 4331, Rev. Stat. Ariz. 1913, Negotiable Instruments Law.

Under the conflicting evidence,

The holder of the check was not bound to present it for payment "at the earliest opportunity," as contended by appellants, but he was bound to present the check for payment "within a reasonable time after its issue" to prevent the discharge of the drawer to the extent of Check-time for loss arising from unreasonable delay. 4331, supra. Whether the plaintiff did present the check for payment within a reasonable time in the circumstances here shown was a question of fact, and that question has been determined adversely to the appellants.

presentment.

The appellants insist that the judgment is erroneous because the bank offered to pay the check and the holder of the check refused to accept the kind of money he was offered by the bank. This contention, like the former, Judgmentwas necessarily de- finding for cided against the plaintiff-effect. appellants. On this dispute, the evidence was also conflicting, as indicated above. The court necessarily found that the bank requested the hold- Checkatonsent er of the check to convenience for payment-effect. return later for payment, as plaintiff's evidence tends to prove.

await

The second statement of error, to wit, "The court erred in rendering said judgment because there is no evidence of any valid promise on the part of appellants to make good

check-effect.

check as final payment. The appellants do not claim that the appellee did accept the check as a final payment, but they insist that appellee sustained a loss because he failed to use ordinary diligence in presenting his check to the bank for payment. The appellants nowhere directly contend that they, the drawers of the check, lost anything because of the plaintiff's failure to present the check for payment within a reasonable time after they issued the check and delivered it to him. The bank suspended business a short time after the check was issued, and the appellants had

a fund with the bank subject to the said check, and sufficient in amount to pay the check at the time the bank became insolvent, and from such facts the inference may be drawn that the appellants lost a portion of their said funds by such insolvency, but no inference can be drawn from such facts that the appellants suffered a Evidenceloss because of the inference-loss appellee's unreason- by failure of able delay in presenting the check for payment. The appellants nowhere directly claim a loss from such cause.

bank.

Upon the whole case, we find no reversible error on the record. As a consequence, the judgment must be affirmed.

Ross, J., concurs.

Note.-Judge Baker having been of counsel in the case, he therefore took no part in this decision.

As stated in the reported case (EMPIRE-ARIZONA COPPER Co. v. SHAW, ante, 1229), a check must be presented for payment within a reasonable time, and a failure in this regard discharges the drawer to the extent of the injury sustained thereby. The opinion in the reported case does not make clear whether the presentment which was relied upon as being within a reasonable time was that on June 1st or that made through the Los Angeles bank after June 10th. The supreme court relies wholly upon the trial court's finding of fact that the check was presented within a reasonable time. The holder did not give notice of dishonor after the first presentation, apparently not relying upon this as a presentation. The conduct of the holder of the check at the time of presentation for payment, as relieving the drawer, has been passed upon in but few cases.

In Simpson v. Pacific Mut. L. Ins. Co. (1872) 44 Cal. 139, the drawer of a

check was held to be relieved of liability thereon by the presentation on the day the check was given of the check for payment, and the tender of the amount of the check by the bank, although the holder declined to accept payment on account of his own convenience, and when, later in the same day, the check was presented, the bank had failed. Although the jury found a verdict for the holder of the check in his action against the drawer, the trial court set the verdict aside and granted a new trial, and the action of the trial court was sustained upon appeal. The supreme court said: "The jury having returned a general verdict for the plaintiff, the defendant moved for a new trial, assigning as one of the grounds of the motion the insufficiency of the evidence to justify the verdict, and with appropriate specifications as to the particulars wherein the evidence was insufficient. The court having granted the motion on this ground, the plaintiff appeals, and insists that the verdict ought not to have been disturbed. The court below appears to have been satisfied from the evidence: First, that the check was drawn against a sufficient fund. Second, that it was presented for payment at the bank by the plaintiff almost immediately after it was delivered by the defendant, and payment was then and there tendered by the bank; but the plaintiff finally declined to accept the money, not with the intention to hold the defendant liable on the check, or otherwise, but only as a matter of convenience to himself, preferring to leave the money temporarily in the bank until he should call for it. Third, that by the transaction at the bank, and by the mutual consent of the plaintiff, the defendant, and the banker, the sum represented by the check was practically transferred from the credit of the defendant to that of the plaintiff, and thenceforth remained in the bank at his risk. It is clear that the plaintiff was in time when he went to the bank at 2 o'clock P. M. of the day on which he received the check for the purpose of demanding payment, unless the transaction at the bank in the forenoon of that day had materially affected his rights. In discussing this branch of the case, we shall assume that the plaintiff went to the bank in the forenoon for the purpose and with the intention of presenting the check for payment, and that he did so present it; but, on becoming satisfied that the check was good, and would be paid on presentation, he concluded, for his own convenience, to retain it temporarily instead of accepting payment at that time. As already stated, there was some evidence tending to prove these facts, and, in the opinion of the court below, which heard the testimony, it was sufficient on this point, and for the purposes of this decision we must assume that it was so. On these facts the question to be solved is whether the holder of a bank check drawn against a sufficient fund, who presents it for payment within the proper time, and to whom payment is then tendered by the bank, but who de

clines to accept the money at that time, preferring to retain the check temporarily, can hold the drawer of the check by again presenting it for payment at a later hour of the same day, when payment is refused and due notice of dishonor given. The question is novel and not free from difficulty; but we shall be materially aided in its solution by first ascertaining with accuracy what are the elements which constitute a presentation for payment in its legal sense. The presenting of a check for payment implies that the holder of it desires and is ready and willing to accept payment. It would be a contradiction in terms to say that the holder of a check presented it for payment, intending and averring at the time that he would not accept payment. If he should present it for the sole purpose of ascertaining whether the signature was genuine, or whether the drawer had funds to his credit, or merely for the purpose of being identified as the person entitled to payment, not intending then to present it for payment, it is clear that this would not constitute a demand of payment, which, in its very nature, imports a willingness on the part of the holder to accept the money at that time. But if the check is presented for payment, with the present intention in the mind of the holder to accept the money if tendered, this must be deemed to be a demand of payment for all purposes affecting the rights of the drawer, even though the holder should afterwards change his purpose and decline to accept the money when tendered by the bank. Having once demanded payment in due form and within the proper time, and the bank being then and there ready and willing and offering to pay the check, the holder is not at liberty after this to retract or waive his demand and decline to accept payment without thereby releasing the drawer from further liability on the check. If the holder declines to accept payment when it is tendered on a proper demand, the liability of the drawer ceases, for the reason that his undertaking was that the check would be paid