
    [No. 17541.
    Department One.
    March 9, 1923.]
    S. H. Mosher, Respondent, v. Albert C. Philips et al., Appellants. 
    
    Appeal (438)—Review—Harmless Error—Pleading. Error cannot be assigned on sustaining a demurrer to an affirmative defense, when defendant was allowed to go fully into the matter at the trial.
    Bills and Notes (75)—Presentment—Failure of Bank. The drawers of a check are liable to the payee where there was a valuable consideration for the check, and, notwithstanding the payee handled it promptly and in due course, the bank on which it was drawn failed before it could be presented.
    Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered May 27, 1922, upon findings in favor of the plaintiff, in an action on a check, tried to the court.
    Affirmed.
    
      Fred S. Fogg and Jesse Thomas, for appellant.
    
      Jno. A. Shackleford and Elizabeth Shackleford, for respondent.
    
      
       Reported in 213 Pac 484.
    
   Mitchell, J.

—Albert C. Philips was engaged in business as a real estate broker. In the course of his business he made and delivered his check, drawn on the Scandinavian American Bank of Tacoma, payable to S. H. Mosher, in the sum of $1,605, in consideration of a deed of conveyance of certain real estate by Mosher to a client or customer of Philips. Upon receipt of the check, it was handled by the payee in prompt and due course, but the bank on which it was drawn failed before it could be presented for payment, whereupon this suit was brought against the drawer, and his wife to recover $1,605 and interest. Findings, conclusions and judgment were entered for the plaintiff, from which defendants have appealed.

A general demurrer was sustained to an affirmative defense to the effect that the appellants were not the debtors, hut agents of the debtor, in making and delivering the check, and.that the respondent’s right of action, if any, was against the real debtor. The assignment of error that the demurrer was improperly sustained is not now available to the appellants, for the record shows that, in the trial of the ease, they were permitted to go fully into that matter. No testimony was excluded or refused. It failed to convince the trial judge, and, upon examining it, we are of the same opinion.

The consideration of the record in all other respects justifies the findings of the trial court that there was a valuable and sufficient consideration for the cheek, that it was not paid, and that appellants, as husband and wife, are liable for the full amount sued for.

Affirmed.

Main, C. J., Holcomb, Bridges, and Mackintosh, JJ., concur.  