Page:Federal Reporter, 1st Series, Volume 2.djvu/132

 AKDEBSSEN V. FIRST NAT. BANK. 125 �Any act which clearly indicates an intention to complj' with the request of the drawer will constitute an accept- ance, and when the draft is received, and the proceeds cred- ited to the payee, ^ho presents it, the drawee cannot, by a subsequent arrangement -with him, cancel the payment, and hold the drawer. �It ia true, a certificate of deposit is not in law an extin- guishment of a debt or payment, unless there was an agree- ment to so accept it. �In this case the evidence shows that Mikkelsen authorized the deposit of the balance of the proceeds of the draft not paid to him in cash to his credit, for bis beneût. The un- contradicted evidence of Mikkelsen is : "I presented the draft and they said it was ail right. They asked if I wanted it right away. They paid $24 or $25, and gave me a note for the money I left." Had the First National Bank failed im- mediately after this certificate was issued and received by Mikkelsen, the loss would have been his ; so that, even as between Mikkelsen and the bank, the certificate, whatever its form as to time when due, was a payment of the draft. �The subsequent payment by the plaintififs on the return of the draft, protested, was made without full information of ail the facts, and the effect of the letter of Mikkelsen was to mislead them. A payment thus made is not voluntary, and the amount can be recovered. �Judgment for plaintifro. ����