
    [No. 18614.
    Department Two.
    August 14, 1924.]
    D. A. Pugh, Appellant, v. H. J. Doupe et al., Respondents.
      
    
    Btt.t.r and Notes (76) — Presentment and Demand — Necessity. One who holds a cheek for nearly thirty days without presenting it, until the bank becomes insolvent, cannot recover from the drawer without establishing a promise to redeem the check, alleged to have been given “as an I. O. U.”
    Appeal (418) — Review—Findings at Law. Findings will not be disturbed on appeal where the evidence is evenly balanced and does not preponderate against them.
    Pemberton, J., dissents.
    Appeal from a judgment of the superior court for Pacific county, Hewen, J., entered December 31, 1923, upon findings in favor of the defendants, in an action on contract, tried to the court.
    Affirmed.
    
      Fred M. Bond, for appellant.
    
      Welsh é Welsh, for respondents.
    
      
      Reported in 228 Pac. 301.
    
   Bridges, J.

The plaintiff sought to recover a judgment for five hundred dollars. The case was tried to the court without a jury. Findings and judgment went in favor of the defendants.

There is nothing but a question of fact involved in this case. The appellant testified that he had a check made payable to himself for one thousand dollars, and drawn on some eastern bank. He lived at or in the immediate neighborhood of Hwaco, in Pacific county, at which town the Southwestern Washington Bank was in operation. He had had trouble with that bank and did not care to do business with it. On the 14th of August, 1923, he called at the respondents’ place of business and asked them to cash the check. They operated a store in Ilwaco and he did some business with them. They did not have one thousand dollars in cash on hand at that time but gave him five hundred dollars and their check on the Southwestern Washington Bank for the balance of five hundred dollars.

He further testified that at the time this check was given, he informed respondents that he did not want to get his money at the bank and it was agreed that he might return the check to them at any time and they would redeem it, and that the check was to act “as an I. O. U.” For these reasons, he did not cash the check, but brought it to the respondents on August 2 and asked them to redeem it. They then asked him to hold it until the following Tuesday, when it would be redeemed. On the following Tuesday, the Southwestern Washington Bank closed its doors, and respondents refused to pay the five hundred dollars, claiming that appellant should have previously presented the check to the bank for payment. Much of the plaintiff’s testimony was supported by that of his wife and, to a certain extent, by another witness. Appellant claims to have had these transactions with the defendant J. H. Doupe.

Mr. Doupe, on behalf of the respondents, admitted that appellant asked him to cash the one thousand dollar check and, as an accommodation, he gave bim five hundred dollars in cash and issued to bim the partnership check for the balance of five hundred dollars, and told him that the bank would cash the check whenever presented; but denies that there was any arrangement whereby the respondents were to redeem the check or that they ever afterwards agreed to redeem it. Appellant knows that Mr. Doupe went to the bank and got a part of The five hundred dollars, which was paid in cash. At all times up until the closing of the bank, the respondents had more than the sum of five hundred dollars on deposit therein subject to check. "When appellant came to their place of business on August 28, they refused to cash the cheek and informed him that he should present it to the bank on which it was drawn and get his money there. One or two other witnesses substantiated the testimony of Mr. Doupe.

We think the great weight of the testimony shows that, notwithstanding appellant did not have a friendly feeling for the Southwestern Washington Bank, he did try to have that institution cash the one thousand dollar check at a time prior to asking the respondents so to do, and that the bank would only take it for collection. It is undisputed that appellant carried the check drawn on the Southwestern Washington Bank from August 4 to about September 1, when that institution went into liquidation. It is apparent that, if he is entitled to recover, it is upon the alleged promise of the respondents to themselves redeem the check. The trial court found for the respondents on the facts.

From the printed record, it is difficult to determine which way the preponderance of evidence lies. It is about as equally balanced as will be found in any lawsuit.

It is not the rule that we will interfere with the court’s findings on disputed facts unless we can determine that the preponderance of the evidence is with them; but the rule is that we will not interfere unless we can determine from the record that the preponderance of the evidence is against them. Having read the testimony, we cannot say that the court was wrong. On such close questions of fact, it is entirely proper that we do not interfere. For this reason the judgment is affirmed.

Main, C. J., Fullerton, and Mitchell, JJ., concur.

Pemberton, J., dissents.  