Simpson v. Pacific Mutual Life Insurance

47 Cal. 585 | Cal. | 1874

By the Court:

1. There was a substantial conflict in the evidence, as to the purpose had in view by the plaintiff in the presentation of the check at the bank—that is, whether that presentation was made with the intent to receive payment at the time, or merely to identify himself as the holder of the check— and the jury having found for the defendant, and the Court below being satisfied with the verdict, we ought not to -disturb it here.

2. The instruction asked by the plaintiff, to the effect that if he went to the bank within the usual banking hours of the same day on which the check was delivered to him, for the purpose of demanding payment, and found the bank closed, he was thereby excused from making actual presentation for payment, was correctly refused, because failing, as it did, to refer in any wise to the legal effect of the transaction occurring at the bank in an earlier part of the same day concerning the check, and which formed the real subject of the controversy, it was calculated to mislead the jury.

Judgment and order denying new trial affirmed. Remittitur forthwith.