(After stating the foregoing facts.) Under an application of the different principles of law stated in the syllabus, there was no error in the judgment rendered in the court below. In point of fact it does not appear (and the judge so held) that there was ever any express or implied agrees ment that the unconditional written acceptance as made by the defendants was based upon a parol condition that the proceeds derived therefrom should only be applied in part payment of a previous indebtedness owing to the defendants by Thompson; but under our view of the law, even hád this been made to appear, it would not have been competent, in the absence of a plea setting up fraud, accident, or mistake, to thus vary the terms of the absolute and unconditional written acceptance, by showing that it was in fact based upon a condition.
It furthermore does not appear that there were ever sufficient funds in the bank to pay either the $1,500 check drawn by Thompson, or the draft upon him drawn by the defendants, upon their respective presentations, but even had such been the case, under the authority cited in the third headnote we think that the failure on the part of the drawee to pay an unaccepted check would not give to the payee thereof a right of action against him, since there ordinarily exists no privity of contract between the payee and the person on whom the cheek is drawn.
Under the authority cited in the fourth headnote, even had the promise to the defendants by the bank to pay the defendants’ draft been absolute and unconditional, it still would not have been a binding agreement on the part of the bank unless .it had been made to appear that the drawee had contemporaneously *284assented that the bank might accumulate and hold for such specific purpose the funds of Thompson then accruing on deposit in said bank. It does not appear, however, either that the promise by the bank was absolute or unconditional, or that any such direction or authority for such specific application had been given it.
Judgment affirmed on main bill of exceptions; cross-bill dismissed.
Wade, C. J., and Luke, J., concur.