The court pointed out that by repairing the sleigh the borrower recognized his obligation to return it in the same condition as when he received it. The same result was reached under a very similar state of facts in Westcott v. Thompson (1858) 18 N. Y. 363, where ale was sold under an agreement that the buyer might retain the barrels containing the ale until the ale was drawn, when they should be returned to the seller; but, if any were not returned, the buyer should pay a certain amount for each barrel not returned. The court said that “the barrels were to be returned, and if not returned, $2 each to be paid for them; that is, $2 should be paid for each barrel not returned; not surely $2 each for the whole number, if all should not be returned. Viewing the contract alone, the parties manifestly intended that the plaintiff [seller] should have the barrels again after the ale was drawn; but they contemplated the possibility that some of them might be lost or destroyed, and thereby the purchaser of the ale be unable to return all of them; and, in reference to that, further intended to fix a price to be paid as the value of each barrel which should not for that reason be redelivered to the plaintiff." A case of interest on this point is Gilbert Book Co. v. Sheridan (1905) 114 Mo. App. 332, 89 S. W. 555, where the transaction was held to constitute a bailment, the contract being one by which the bailee agreed to write a certain textbook for the bailor, the latter to furnish him with certain law reports, which, if the textbook was completed, were to be paid for out of the royalties from the sale thereof. The court said that it will be observed that the writing above set out denominated the transaction a loan; and the evident purport of the whole paper is to the effect that the Gilbert Book Company loaned the books, up to the time of the completion of the editorial work, when they were to become the property of Reading, and he was to be charged by the Gilbert Book Company with the regular price thereof, which was to be settled by deductions from 38 A.L.R.-12. the royalties coming to Reading under the former part of the contract. In these circumstances the court said: "It appears clearly to this court that the transaction was a mere loan of the books, or bailment, by the Gilbert Company to Reading, and that the parties so understood it as evidence from the fact that they denominated it a loan in the writing above set out." In In Caldwell v. Hall (1882) 60 Miss. 330, 45 Am. Rep. 410, 1 Am. Neg. Cas. 803, while not in point as to the facts, it being a case where for the accommodation of the owner, money was left in a safe with permission to the bailee to use the money in his business if he so desired, the transaction was held to constitute a bailment; hence the title remained in the depositor, and he was obliged to stand the loss of the money, where it was stolen from the safe without negligence on the part of the owner. this holding the court used language which is apt upon the question under consideration. Upon this point it is said: "This irregular and anomalous character of bailment, well defined and recognized in the Roman or continental law, is alluded to rather than distinctly announced by the commonlaw writers. In our system of jurisprudence it is treated as a sale, rather than a bailment; and this seems to be its proper aspect, since its practical effect must always be to operate a transfer of title where chattels are deposited, and to create the relation of lender and borrower where money is involved. In the one case it is a sale, with the right in the purchaser to return the thing delivered or its equivalent in kind, though not in specie. In the other it is a deposit of money with the understanding that it is to be surrendered on demand, but with the right in the receiver to use and replace it if he desires. A delivers to B a quantity of flour or wine or cotton, with the agreement that the latter may use it at his pleasure and return its equivalent in the same species of goods, this is nothing more or less than a purchase, with the right in the buyer to pay in a If It follows, particular manner; and if the goods. without reward, and was to be so held and accounted for by him, with permission, however, to use it in his business, if at any time thereafter he should elect so to do. If he did use it he was to become at once the debtor of the depositor. If he did not, but on the contrary it should continually remain on deposit at all times subject to be drawn out by the depositor whenever he chose, and without consultation with Caldwell, the latter remained a bailee without hire, and bound only for that ordinary care demanded of persons occupying that position. It is not pretended by appellee that appellant, at the time of the deposit, borrowed the money, or in any way indicated a present intention to appropriate it to his own use; and the subsequent manner of dealing with it by both parties shows that it continued to be regarded by both as the property of the depositor." A. G. S. OREGON IRON & STEEL COMPANY, Appt., V. KELSO STATE BANK et al., Respts. Washington Supreme Court (Dept. No. 1)- March 27, 1924. (129 Wash. 109, 224 Pac. 569.) Banks, § 112 - what is acceptance of check. 1. Acceptance of a check is effected by marking it paid, charging it to the account of the maker, issuing a draft on a correspondent for the amount, and retaining the check. [See note on this question beginning on page 185.] Appeal, § 345-binding effect of finding. 2. An appellant is bound by a finding of facts by the trial court to which no exception is taken. [See 2 R. C. L. 204; 1 R. C. L. Supp. 443; 4 R. C. L. Supp. 92; 5 R. C. L. Supp. 81.] finding of overdraft Trial effect. 4. A finding that a check constituted an overdraft on the maker's deposit account is equivalent to a finding that the bank accepted the check. Checks, § 25 acceptance by bank effect. 5. The acceptance of a check by the drawee releases the maker and all indorsers from liability thereon. Banks, § 112 - acceptance of check effect of overdraft. 6. That a check constitutes an overdraft does not affect the liability of APPEAL by plaintiff from a judgment of the Superior Court for Cowlitz county (Kirby, J.) in favor of defendants in an action brought to require them to recognize plaintiff's claim against the insolvent bank. Reversed. The facts are stated in the opinion of the court. Acceptor by accepting an instrument engages that he will pay it according to the tenor of his acceptance. First Nat. Bank v. National Park Bank, 100 Misc. 31, 165 N. Y. Supp. 15; American Nat. Bank v. Miller, 229 U. S. 517, 57 L. ed. 1310, 33 Sup. Ct. Rep. 883; Consolidated Nat. Bank v. First Nat. Bank, 129 App. Div. 538, 114 N. Y. Supp. 308. The liability of the drawee bank is not dependent on the condition of the account of the drawer. First Nat. Bank v. Devenish, 15 Colo. 229, 22 Am. St. Rep. 394, 25 Pac. 177; Spokane & E. Trust Co. v. Huff, 63 Wash. 225, 33 L.R.A. (N.S.) 1023, 115 Pac. 81, Ann. Cas. 1912D, 491; National Bank v. Berrall, 70 N. J. L. 757, 66 L.R.A. 599, 103 Am. St. Rep. 821, 58 Atl. 189, 1 Ann. Cas. 630; Manufacturers' Nat. Bank v. Swift, 70 Md. 515, 14 Am. St. Rep. 381, 17 Atl. 336; Citizens Bank v. Swarzschild & S. Co. 109 Va. 539, 23 L.R.A. (N.S.) 1092, 64 S. E. 954; Boylston Nat. Bank v. Richardson, 101 Mass. 287. The issuing of a draft by a drawee bank to cover a check fixes the rights of the parties. Security Nat. Bank v. Old Nat. Bank, 154 C. C. A. 1, 241 Fed. 1; Farmers' Guaranty State Bank v. Burrus Mill & Elevator Co. Tex. Civ. App. -, 207 S. W. 400. Where the holder of a check procures it to be accepted or certified, the drawer and all the indorsers are discharged from liability thereon. National Bank v. First Nat. Bank, 141 Mo. App. 719, 125 S. W. 513; Gallo v. Brooklyn Sav. Bank, 199 N. Y. 222, 32 L.R.A. (N.S.) 66, 92 N. E. 633; Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301, L.R.A.1916C, 186, 107 N. E. 693; Meuer v. Phenix Nat. Bank, 94 App. Div. 331, 88 N. Y. Supp. 83. Messrs. Miller, Wilkinson, & Miller for respondents. Mackintosh, J., delivered the opinion of the court: This action is here without any statement of facts, and the only question is whether the findings of fact justify the conclusions of law and the judgment. The findings, conclusions, and judgment are as follows: "I. That the Oregon Iron & Steel Company, Ladd & Tilton Bank, Federal Reserve Bank of San Francisco, United States National Bank of Portland, and the Kelso State Bank of Kelso, Washington, are all corporations duly organized and existing. "II. That John P. Duke is the duly qualified and acting supervisor of banking of the state of Washington; that on the 17th day of March, 1921, the said Kelso State Bank became unsound and insolvent, and its assets were taken charge of under the banking laws of the state of Washington, and since that time it has been in liquidation, and T. H. Adams is now in charge as the special deputy supervisor of banking. liquidating the Kelso State Bank. "III. That for a long time prior to the 17th day of March, 1921, and until the bank was taken in charge. by the bank officials of the state of Washington, F. L. Stewart was the cashier and general manager of the said Kelso State Bank, and had been its cashier in charge of the affairs of the bank and the managing officer thereof for a number of years previous thereto. "IV. That on or about the 15th day of March, 1921, the said F. L. Stewart drew his personal check on the Kelso State Bank for the sum of $3,237.64, payable to the order of the Oregon Iron & Steel Company, the plaintiff herein; that said check was forwarded in due course of mail to the Oregon Iron & Steel Company at Portland, Oregon, and indorsed by it and delivered to the Ladd & Tilton Bank in Portland, Oregon, for collection, and was indorsed by the Ladd & Tilton Bank of Portland to the Federal Reserve Bank of San Francisco, Portland Branch, for collection. "V. That on or about the 16th day of March, 1921, the said Federal Reserve Bank presented to the Kelso State Bank items drawn on the Kelso State Bank aggregating $4,891.08, and that among the items so presented to said Kelso State Bank was the check drawn by the said F. L. Stewart and payable to the Oregon Iron & Steel Company, the plaintiff herein; that when said items were presented to said Kelso State Bank it issued its draft, No. 298, dated March 16, 1921, in the sum of $4,891.08, payable to the Portland Branch of the Federal Reserve Bank, and drawn on the United States National Bank of Portland. "VI. That on March 17, 1921, said Federal Reserve Bank presented said draft to the United States National Bank at Portland, and payment was refused, and the draft returned marked, 'Bank closed,' by the United States National Bank, and said draft was on March 18, 1921, protested for nonpayment and notice given to the officials in charge of the Kelso State Bank, and the said draft was subsequently returned to the Kelso State Bank by the Federal Reserve Bank of San Francisco. "VII. That at the time said check was drawn by the said F. L. Stewart, he had no sufficient funds to pay the same, and it constituted an overdraft to the amount of $3,164.38, and continued an overdraft in the same amount until the bank closed. "VIII. That at said time and for a long time prior thereto, the said Kelso State Bank was in an insolvent condition and unable to meet its liabilities, and its condition was well known to the said F. L. Stewart. "IX. That said draft was payable to the order of the Portland Branch of the Federal Reserve Bank at Portland, and that upon its receipt by the said Federal Reserve Bank at Portland the said Federal Reserve Bank, acting as agent for the plaintiff herein, refused to accept the same or any part thereof, but repudiated the draft and returned the same to the said Kelso State Bank, and notified the officers in charge of the bank of its refusal to accept the draft, and said draft was never accepted by the Portland Branch of the Federal Reserve Bank, either for itself or for the plaintiff, and was never accepted by the plaintiff, but plaintiff refused to accept the same. "X. That at no time from the time the original check was issued by the said F. L. Stewart was there sufficient funds to the credit of the said F. L. Stewart to pay said check or the draft referred to, and they amounted to an overdraft in the sum of $3,164.38. "Conclusions of Law. "That at the time the check in question was issued by the said F. L. Stewart, he had no funds to his credit with which to pay said check, and the issuance of the same constituted an overdraft and was in violation of law. "That at the time said draft was issued, there were no funds to pay the same, and it was issued in violation of law and was therefore void. "That the plaintiff refused to accept the draft, and it was never accepted or became a binding obligation against the Kelso State Bank. "That plaintiff is not entitled to (129 Wash. 109, 224 Pac. 569.) recover in this action, and the defendant is entitled to a judgment of dismissal. "Judgment. "It is ordered and adjudged that plaintiff's action be dismissed, and that defendant recover judgment for his costs." Appeal-bind finding. The court having found that the draft given by the Kelso Bank in payment of the check was repudiated and never accepted by the appellant, the appeling effect of lant is bound by that finding, and it is therefore to be borne in mind that this is not an action against the respondent upon that draft. The theory upon which any judgment in favor of the appellant can be granted is that the respondent is liable by virtue of having accepted and honored the Stewart check. The sections of the Code applicable to the facts are: That portion of § 3453, Rem. Comp. Stat., reading as follows: "The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance." And that portion of § 3522, Rem. Comp. Stat., reading: "The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer." And § 3579, Rem. Comp. Stat., as follows: "A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check." tion is made that the findings do not show that the check was accepted. Finding No. 7, however, clearly states that the bank accepted the Stewart check, because it is stated that the check constituted an overdraft and "continued an overdraft in the same amount until the bank closed." In order to constitute an overdraft the check Trial-finding must have been ac- of overdraft cepted by the bank and marked "Paid" and the account of Stewart charged with the amount of the check. This is further clearly indicated by the Banks-what is -effect. check. fact that the draft acceptance of was issued for the amount of the check and the check retained. These acts constituted an acceptance under the statute. In First Nat. Bank v. National Park Bank, 100 Misc. 31, 165 N. Y. Supp. 15, the court said: "By charging the account of the trust company with this check, the same has been paid, nothing more was left to be done, and the plaintiff was entitled to receive the proceeds of the check." Under facts very similar to the facts of the case at bar, the court, in Consolidated Nat. Bank v. First Nat. Bank, 129 App. Div. 538, 114 N. Y. Supp. 308, said: "The check, when presented to the defendant, was paid by its acceptance by the defendant as valid, by marking the same paid, crediting the amount to the account of the plaintiff's agent and charging it against the account of Davies & Company. As a matter of law, that closed the transaction without power of revocation. The defendant bank had become the debtor of the plaintiff's agent to the extent of the amount of the credit given, which was the amount of the check." This case was reaffirmed in Consolidated Nat. Bank v. First Nat. Bank, 199 N. Y. 516, 92 N. E. 1081. The Supreme Court of the United States, in First Nat. Bank v. Burkhardt, 100 U. S. 686, 25 L. ed. 766, said this concerning this question: "When a check on itself is offered |