1. The question whether the draft upon Hitchcock, Shaw & Co. was received by the plaintiff in payment of his note, was submitted to the jury upon substantially conflicting evidence, and will not, therefore, be examined into here.

2. We think the evidence sufficiently shows all the diligence in the presentation of the draft for payment that could be reasonably required under the circumstances of the case.

3. There was no error in giving the first instruction asked by the plaintiff. The decisions of the different States are not uniform upon the question presented by this instruction. But this Court has repeatedly recognized the rule that an express agreement must be shown to establish the fact that a bill or note of either the debtor or a third person *166was taken by the creditor in payment of a pre-existing debt. (Griffith v. Grogan, 12 Cal. 320; Welch v. Allington, 23 Cal. 322; Brewster v. Bours, 8 Cal. 506.)

We think it unnecessary to discuss other points made by the appellant. We find no error in the record.

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.