I dissent. In the agreed statement of facts stipulating that there was a purchase and sale of a draft, sufficient facts are set forth to dispose of the entire matter. On the record agreed upon by the parties, the title to the draft passed to the defendant, and the plaintiff as a general creditor has a claim only against the assets of the bank based upon the cashier’s check.
The cashier’s check was good when given. Nothing was said at that time to the effect that it was not taken in payment or that it was not to be considered as payment. If promptly presented on the day it was issued, it would have been paid. Under the circumstances the plaintiff is an ordinary creditor of the bank.
In my opinion judgment should be rendered for the defendant.
Finch, P. J., concurs.
Submission dismissed without prejudice to a new submission or a new action. Settle order on notice.