#### Jacob Pickel and William Pickel v. A. L. Luetgert.

1. Res Gestee—Conversation Between Payee and Banlc, When Admissible.—Where the payee of a check presented the same to the bank for payment and payment was refused, in a suit between him and the drawer, after the failure of the bank, the conversation between the ' payee and the person in the bank to whom he presented the check is admissible as res gestee.

Assumpsit, on a check. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the March term, 1895.

Affirmed.

Opinion filed June 24, 1895.

B. M. Shaffner, attorney for appellants.

Arnold Tripp, attorney for appellee.

Mr. Justice Gary

delivered the opinion of the Court.

The appellants, composing the firm of Jacob Pickel & Bro., gave to the appellee a check for $85.85. Three days afterward the bank on which it was drawn failed. The appellee testified that he presented the check to the bank for payment the next day after he received it, and payment was refused; and that the next day he told one of the appellants and asked him to take up the check, and he refused to do so.

There was no other testimony that the check was presented, and the alleged interview between the parties on the second day was denied. The appellants had plenty of money in the bank.

The only question in the case is, which, as a witness, told the truth—the appellant Jacob Pickel, or the appellee. We *379don’t know, arid therefore can not say that the circuit judge erred in believing either.

The testimony of the appellee as to what passed between himself and the person in the bank to whom he presented the check was admissible as res gestee. The judgment is affirmed.