table. Plaintiff in endeavoring to escape the engine-tender fast approaching him, in the darkness stumbled over the sacks and was thrown across one of the turntable tracks and was thus run over and injured. One of the defenses was contributory negligence, a defense open to appellant under the Federal Liability Act, a defense of which it was deprived by virtue of the instructions which the court gave. The injury thus sustained by appellant is manifest.

Something further needs to be said in contemplation of the new trial which must be ordered. One of the defenses which defendant sought to establish was that the hostler in backing his engine did so in compliance with the signal given him by plaintiff himself. Upon this the complaint charged in the following language: "While the plaintiff was so engaged in picking up said lantern and preparing to signal, said hostler carelessly and negligently and without receiving any signal from the plaintiff drove said engine upon said turntable," and the answer made was: "Defendant denies that while the plaintiff was engaged in picking up his said or any lantern, or preparing to give the signal to the said or any hostler, the said. or any hostler carelessly or negligently drove said engine upon said turntable." Respondent argues that here is a complete failure upon the part of appellant to deny that no signal was given. Unquestionably in the matter of this denial the answer is susceptible of improvement, but by both parties upon the trial it was taken as an accepted fact that issue was joined upon this proposition, and much evidence pro and con was admitted without objection upon the question. It is a familiar principle that the case having been tried upon this theory without objection neither party will be allowed to present it in this court for the first time. (Tulley v. Tranor, 53 Cal. 274; Horton v. Dominguez, 68 Cal. 642, [10 Pac. 186]; Illinois Trust & Sav. Bank v. Pacific Ry. Co., 115 Cal. 285, 297, [47 Pac. 60]; Gervaise v. Brookins, 156 Cal. 110, [103 Pac. 332].)

Appellant further argues that no evidence of legal sufficiency was adduced to show any negligence on its part. It is not disputed that the plaintiff himself furnished evidence upon all these matters of asserted negligence, but the answer is made that the evidence is incredible. There are exceptional cases such as that of Blankman v. Vallejo, 15 Cal. 638, 639, County of Sonoma v. Stofen, 125 Cal. 32, 35, [57 Pac. 681],

Atchison, T. & S. F. Ry. Co. v. Baker (Ind. Ter.), 104 S. W. 1182, and People v. Milner, 122 Cal. 171, [54 Pac. 833], where in effect it is declared that the judgment of a court is not to be based on or controlled by the testimony of a witness testifying to a fact inherently impossible. But this case does not come within that category. The weight of the evidence upon the question of the defendant's negligence was for the jury under proper instructions of the court.

The judgment and order appealed from are reversed.

Melvin, J., Lorigan, J., Shaw, J., Sloss, J., and Angellotti, C. J., concurred.

[S. F. No. 7020. Department One.--December 29, 1916.] UTAH CONSTRUCTION COMPANY, Appellant, v. WESTERN PACIFIC RAILWAY COMPANY, Respondent. ARBITRATION AND AWARD-JUDGMENT APPEAL.-In arbitration proceedings, the code does not permit a separate appeal from the judgment entered on the award, even though the entry occurs after a decision on a motion to vacate made under sections 1287 and 1288 of the Code of Civil Procedure, as the only appeal allowable is from the decision on the motion.

ID.-UNQUALIFIED SUBMISSION OF CONTROVERSY-SETTING ASIDE OF AWARD.-An award made upon an unqualified submission will not be set aside on the ground that it is contrary to law, unless error appears on the face of the award and causes substantial injustice. ID. SUBMISSION ON TERMS-RULE.-A different rule obtains where the arbitrators are required by the terms of the submission to determine the rights of the parties according to law, as in such a case a failure to so determine is sufficient ground to avoid the award. ID. ENTRY OF SUBMISSION AGREEMENT AS COURT ORDER-ARBITRATOR NOT JUDGE PRO TEMPORE.—An agreement that a submission to arbitration shall be entered as an order of court under section 1283 of the Code of Civil Procedure does not make the arbitrator a judge pro tempore of the superior court under section 8, article VI, of the constitution, as amended.

ID. REVIEW OF AWARD-APPEAL-SUFFICIENCY OF EVIDENCE.-Upon an appeal taken in an arbitration proceeding, the sufficiency of the evidence to sustain the award will not be reviewed, unless otherwise provided by the terms of the submission agreement, as the provisions of section 1287 of the Code of Civil Procedure do not authorize the appellate court to consider the weight of the evidence

or to overrule the arbitrator where he has drawn reasonable inferences from the facts proven.

ID. PAYMENT OF INDEBTEDNESS BY CHECKS-DEPOSIT WITH PAYEE BY COLLECTING BANK-GIVING OF CREDIT DISCHARGE OF DRAWER.Where a railroad corporation in good faith draws checks upon a bank in which it has money on deposit and delivers them to a construction company in payment of an indebtedness, and the latter company indorses the checks to another bank for collection, but the latter bank, instead of cashing them, deposits the checks in the bank upon which they were drawn and in which the bank kept a deposit account, and takes credit for the amount thereof for its own purposes, the railroad company is exonerated, even though the drawee is insolvent.

ID.-CREDIT FOR CHECK-PAYMENT.—A credit given for the amount of a check by the bank upon which it is drawn is equivalent to and will be treated as payment thereof.

ID. KNOWLEDGE OF INSOLVENCY OF DRAWEE-OFFICER OF BANKNOTICE NOT IMPUTABLE TO DRAWER.-Knowledge of the insolvency of the drawee cannot be imputed to the drawer by reason of the fact that the president of the drawee was also treasurer of the drawer, where such officer had no control of the money of the drawer, and the duties as treasurer gave him no knowledge of such insolvency.

ID. DEPOSIT OF CHECK WITH DRAWEE-CREDIT OF DEPOSITOR-LACK OF NOVATION BETWEEN DRAWER AND DRAWEE.-The delivery of a check to a payee, who indorses it to his bank for collection, and which the bank in turn deposits to its credit with the drawee, is not a novation, as to drawer and drawee.

ID. DELAY IN PRESENTMENT OF CHECK-EXONERATION OF DRAWER— RULE WHEN INAPPLICABLE.-The provision of section 3255 of the Civil Code exonerating drawers of checks from liability applies only where there has been delay in presentment, and not to cases in which a check has been presented to the drawee and its credit accepted in lieu of cash.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a motion to vacate an award in arbitration proceedings. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Gavin McNab, B. M. Aikins, R. P. Henshall, and Luther Elkins, for Appellant.

Warren Olney, Jr., O. K. McMurray, F. W. McCutcheon, John S. Partridge, and A. R. Baldwin, for Respondent.

SHAW, J.-A controversy existed between the plaintiff and the defendant with regard to a claim by the plaintiff that the defendant was indebted to it in the sum of $236,735.28, on account of the construction by the plaintiff of the defendant's railroad, and the claim of the defendant that such indebtedness had been discharged by the execution and delivery to the plaintiff by defendant of fifteen checks aggregating $153,562.24 and nine checks aggregating $83,175.04 upon the California Safe Deposit and Trust Company, bearing date October 22, 1907. On April 29, 1910, the parties agreed in writing to submit said controversy to Charles P. Eells as arbitrator. The agreement empowered him to hear the evidence, judge and determine said controversy, and make a final award thereon which should be a complete and final adjudication of all the matters so submitted, and provided that the submission should be entered as an order of the superior court of the city and county of San Francisco, in accordance with section 1283 of the Code of Civil Procedure. Pursuant to this agreement the parties produced evidence, submitted the matter, and the arbitrator made his award thereon declaring that the plaintiff take nothing and that the defendant should have judgment for its costs incurred in the proceedings. This award, signed by the arbitrator, was delivered to the parties and filed with the clerk of said court on April 19, 1913, and a note thereof was thereupon made in the clerk's register. Notice of such filing was served on the plaintiff. On April 23, 1913, the plaintiff duly served and filed a notice of motion in the superior court to vacate and set aside the award. This motion was denied on September 24, 1913. On September 27, 1913, the award was regularly entered by the clerk as a judgment in the judgment-book of said court. The plaintiff has filed two notices of appeal, one from the judgment entered by the clerk upon the award, the other from the order of the superior court denying the motion to vacate the award.

The respondent contends that no appeal lies from the judg ment entered by the clerk upon the award of the arbitrator. The judgment here involved was entered by the clerk but the entry was made after the decision by the court on the motion to vacate the award. Section 1289 of the Code of Civil Procedure provides that "The decision upon the motion is subject to appeal in the same manner as an order which

is subject to appeal in a civil action; but the judgment entered before a motion made cannot be subject to appeal." This embraces the motions authorized by sections 1287 and 1288 only.

We are of the opinion that the code does not allow a separate appeal from the judgment entered upon the award. The policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement is to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing. The statutory provisions for a review thereof are manifestly for the sole purpose of preventing the misuse of the proceeding, where corruption, fraud, misconduct, gross error, or mistake has been carried into the award to the substantial prejudice of a party to the proceeding. The design was to avoid useless proceedings and to make the practice simple and as speedy as would be consistent with justice. In Peachy v. Ritchie, 4 Cal. 205, 207, it is said that the statute providing for the review of such awards "gives to the parties no higher rights than they might have asserted in a court of equity in case of mistake, fraud or accident." It has also been said that "by reason of the fact that the proceeding represents a method of the parties' own choice and furnishes a more expeditious and less expensive means of settling controversies than the ordinary course of regular judicial proceedings, it is the policy of the law to favor arbitration. Therefore every reasonable intendment will be indulged to give effect to such proceedings." (5 Cor. Jur. 20; Fluharty v. Beatty, 22 W. Va. 698, 705; Payne v. Crawford, 97 Ala. 604, 607, [11 South. 725]; Wilson v. Wilson, 18 Colo. 615, 620, [34 Pac. 175]; Russell v. Smith, 87 Ind. 457; Groat v. Pracht, 31 Kan. 656, [3 Pac. 274]; Snyder v. Kouse, 58 Ky. (1 Met.) 625, 627; Mickles v. Thayer, 96 Mass. (14 Allen) 114, 119; Brush v. Fisher, 70 Mich. 469, 473, [14 Am. St. Rep. 510, 38 N. W. 446]; Tucker v. Allen, 47 Mo. 488, 490; Caldwell v. Brooks Elevator Co., 10 N. D. 575, 580, [88 N. W. 700]; Bishop v. Valley Falls Mfg. Co., 78 S. C. 312, 315, [58 S. E. 939]; Jensen v. Deep Creek etc. Co., 27 Utah, 66, 75, [74 Pac. 427]. In view of this policy of the law the reasonable conclusion is that section 1289 was intended to cover all the methods of review by appeal in arbitration proceedings. Where the submission is unqualified, an award cannot be set