delivered the opinion of this Court:
This case was submitted to the Court and jury upon the admitted statement of facts set out in the record. At the trial, the defendant offered a prayer, which, after reciting all the facts in the case, ashed the Court’s instruction, that the plaintiff did not use due and reasonable diligence in demanding payment of the certificate of deposit, and was not entitled to recover; which instruction the Court gave, and the plaintiff excepted. The Court then, of its own motion, instructed the jury that there was evidence, from which they might find that the plaintiff adopted the payment to Josiah Lee & Co., as payment to himself, and if they did so find, the verdict must be for the defendant. To this instruction the plaintiff also excepted.
We think the appellee’s prayer was properly granted. It appears from the evidence, that it required, but two days to transmit a communication from Cincinnati to Baltimore; and the appellant not having made demand of payment of the certificate of deposit until the fifteenth day after his acknowledgment of its receipt, he did not use due and reasonable diligence. We are also of opinion, that the instruction given by the Court was correct.
Though the money deposited by the appellee was not deposited by the authority of the appellant, or with his previous knowledge, yet upon his acknowledgment of the receipt of the certificate, he sanctioned the deposit as a payment to himself, especially as he made use of the certificate for his own purposes, and thus made Josiah Lee & Co., his agents, to hold the -fund, subject to his order. The appellant thus assuming control of the fund, it must be regarded as a payment of the debt due to him by the ap-pellee.
Judgment affirmed.