
    No. 11,845.
    Miller v. Maxwell.
    Decided November 28, 1927.
    Rehearing denied December 12, 1927.
    Action on bank check. Judgment for defendant.
    
      Affirmed.
    
    3. Bills and Notes — Bank Check — Conditional. In an action on a bank check which was given under the condition that drawer “made collections to pay it,” the condition not being fulfilled, judgment was properly given for defendant.
    
      Error to the County Court of the. City and County of Denver, Eon. E. J. Ingram, Judge.
    
    Mr. Charles Rosenbaum, for plaintiff in error.
    Mr. A. Newton Patton, for defendant in error.
    
      Department One.
    
   Mr. Justice Denison

delivered the opinion of the court.

Miller had judgment against Maxwell on a dishonored check before justice of the peace. On appeal both sides moved for a directed verdict and the court directed for the defendant. The plaintiff brings error.

- The evidence shows that Miller was mortgagee of an apartment house, Maxwell was the agent of the owner and mortgagor. Maxwell gave Miller’s agents the check in question which they credited on account of interest on the mortgage note and when it was dishonored Miller brought this action.

There was evidence which some circumstances tended to corroborate, that when Maxwell left the check with Miller’s agents he said it was left in payment of interest upon the obligation to Miller “provided I made the collections to pay it, ’ ’ and that he never was able to make the collections. If the court believed this the judgment was right. C. L. § 3833; Sayre v. Leonard, 57 Colo. 118, 140 Pac. 196.

Judgment affirmed.

Me. Chiee Justice Burke, Mr. Justice Whiteord and Mr. Justice Sheaeor concur.  