NOT SOLD (BIDDING OVER)
0.00USD+ applicable fees & taxes.
This item WAS NOT SOLD. Auction date was 2004 Jan 09 @ 13:00UTC-5 : EST/CDT
1836 $5 AU50 ANACS. Second Head, Large Date, McCloskey 4-D, R.3. Nicely struck for this often ill-defined issue, with bright yellow-gold surfaces that retain considerable luster. Important notice: Heritage usually auctions material at the rate of 200-250 lots per hour. On some occasions eBay Live bid software or the Internet may not be able to keep up with the pace of the auction. We recommend placing a realistic absentee bid now as insurance to avoid disappointment. Occasionally the auctioneer may eliminate or reject an eBay Live bid, and the auctioneer may also reopen a lot after the close of the eBay live bidding (usually because we missed an audience bid), and may reject your bid even if it shows you as the winning bidder. By bidding via eBay Live, you agree that Heritage may award the lot to another bidder at its sole discretion under the circumstances described above or any other reasonable circumstances. Also please note that all Heritage lots purchased through eBay Live carry a 20% Buyer's Premium. Please make sure you read the Terms and Conditions before you bid.
Auction Location:
United States
Previewing Details:
January 5 - January 10, 2004
Lots delivered in the States of Texas, Florida, or other states where the auction may be held, are subject to all applicable state and local taxes, unless appropriate permits are on file with us. Lots from different auctions may not be aggregated for sales tax purposes.
Additional Fees:
Shipping Details:
Seller will ship internationally (worldwide).
All shipping charges will be borne by the successful Bidder. Any risk of loss during shipment will be borne by the buyer following Auctioneer's delivery to the designated common carrier.
Payment Details:
All sales are strictly for cash in United States dollars. Cash includes: U.S. currency, bank wire, cashier checks, travelers checks, and bank money orders, all subject to reporting requirements. Credit Card (Visa or Master Card only) payments may be accepted up to $10,000 from non-dealers at the sole discretion of the auctioneer, subject to the following limitations: a) sales are only to the cardholder, b) purchases are shipped to the cardholder's registered and verified address, c) Auctioneer may preapprove the cardholder's credit line, d) a credit card transaction may not be used in conjunction with any other financing or extended terms offered by the Auctioneer, and must transact immediately upon invoice presentation, e) rights of return are governed by these Terms and Conditions, which supersede those conditions promulgated by the card issuer, f) floor Bidders must present their card. Personal or corporate checks may be subject to clearing before delivery of the purchases.
Payment is due upon closing of the auction session, or upon presentment of an invoice. The Auctioneer reserves the right to void a sale if payment in full of the invoice is not received within 7 days after the close of the auction.
<p>Auctioneer and Auction:
<p>This auction is presented by Heritage Numismatic Auctions. Inc. or its subsidiary Currency Auctions of America or its affiliate, Heritage Comic Auctions, as identified with the applicable licensing information either on the title page of the catalog or on the Internet site (the "Auctioneer"). The auction is conducted under these Terms and Conditions of Auction and applicable state and local law.
<b>
<p>Buyer's Premium:
<p>On bids placed through Heritage, a Buyer's Premium equal to fifteen percent [15%] of the hammer price will be added to the successful bid. If the bid is placed through eBay Live a Buyer's Premium equal to twenty percent [20%] of the hammer price will be added to the successful bid. There is a minimum Buyer's Premium of $6.00 per lot. </b>
<p><b>Auction Venues: </b>
<p>Exclusively Internet, CurrencyAuction.com, Amazing Comics Auctions, and Bullet Auctions are auctions conducted on the Internet. Signature auctions accept bids on the Internet first, followed by a floor bidding session. Bids may be placed prior to the floor bidding session by Internet, telephone, TeleBid™, fax, or mail.
<p><b>Bidders: </b>
<p>Any person participating in or who registers for the auction agrees to be bound by and accepts these Terms and Conditions of Auction ("Bidder(s)").
<p>All Bidders must meet Auctioneer's qualifications to bid. Any Bidder who is not a customer in good standing of the Auctioneer may be disqualified at Auctioneer's sole option and will not be awarded lots. Such a determination may be made by Auctioneer in its sole and unlimited discretion, at any time prior to, during, or even after the close of the auction.
<p>If an entity places a bid, then the person executing the bid on behalf of the entity agrees to personally guarantee payment for any successful bid.
<p>Auctioneer reserves the right to exclude any person it deems in its sole opinion is disruptive to the auction or is otherwise commercially unsuitable.
<p><b>Credit References: </b>
<p>Bidders who do not have established credit with the Auctioneer must either furnish satisfactory credit information including two collectibles-related references well in advance of the auction date or supply valid credit card information. All Bidders must meet Auctioneer's qualifications to bid. Any Bidder who is not a customer in good standing at Auctioneer may be disqualified and will not be awarded lots. Auctioneer reserves the right to disqualify any Bidder even after the close of the auction. Bids placed through our Interactive Internet program will only be accepted from pre-registered Bidders. Bidders who are not members of HeritageCoin.com or HeritageComics.com should pre-register at least two business days before the first session to allow adequate time to contact references.
<p><b>Bidding Options: </b>
<p>Bids may be placed for a Signature Sale as set forth in the printed catalog section entitled "Choose your bidding method." For Exclusively Internet, CurrencyAuction. Com, Amazing Comics Auctions, and Bullet auctions see the alternatives shown on each website. Review at www.HeritageCoin.com/Auctions/howtobid.asp.
<p>The Auctioneer cannot be responsible for your errors in bidding, so carefully check that your bid is entered correctly. When identical mail or FAX bids are submitted, preference is given to the first received; Internet bids are evaluated as received first. The decision of the Auctioneer and declaration of the winning Bidder is final. The Auctioneer is not responsible for executing mail bids or FAX bids received on or after the day the first lot is sold, nor Internet bids submitted after the published closing time; nor is the Auctioneer responsible for proper execution of bids submitted by telephone, mail, FAX, e-mail, Internet, or in person once the auction begins. To ensure the greatest accuracy, your written bids should be entered on the standard bid sheet form and be received at the Auctioneer's place of business at least two business days in advance of the auction date. Internet bids may not be withdrawn until your written request is received and acknowledged by Auctioneer (FAX: 214-443-8425); such requests must state the reason, and may constitute grounds for withdrawal of bidding privileges. Lots won by mail Bidders will not be delivered at the auction unless prearranged in advance.
<p><b>Conducting the Auction: </b>
<p>Notice of the consignor's liberty to place reserve bids on his lots in the auction is hereby made in accordance with Article 2 of the Texas Uniform Commercial Code. A reserve is an amount below which the lot will not sell. THE CONSIGNOR OF PROPERTY MAY PLACE WRITTEN RESERVE BIDS ON HIS LOTS IN ADVANCE OF THE AUCTION. ON LOTS SUBJECT TO A RESERVE, IF THE LOT DOES NOT MEET THE RESERVE THE CONSIGNOR MAY PAY A REDUCED COMMISSION ON THOSE LOTS. Reserves are generally posted online about 72 hours prior to the auction closing. IF THERE IS AN UNMET RESERVE BID POSTED ON A LOT, THE CURRENT BID DISPLAYED ONLINE WILL GENERALLY BE ONE INCREMENT BELOW THE RESERVE BID. The Auctioneer will not knowingly accept (and reserves the right to reject) live telephone or floor bids from consignors. Any successful bid placed by a consignor on his consigned lot on the auction floor or by telephone during the live session will be considered an unqualified bid, and in such instances the consignor agrees to pay full Buyer's Premium and Seller's Commissions on the lot(s).
<p>The highest qualified Bidder shall be the buyer. In the event of any dispute between floor Bidders at a Signature Sale, the Auctioneer may at his sole discretion put the lot up for auction again. The Auctioneer's decision shall be final and binding upon all Bidders.
<p>The Auctioneer reserves the right to refuse to honor any bid or to limit the amount of any bid which, in his sole discretion, is not submitted in "Good Faith," or is not supported by satisfactory credit, numismatic references, or otherwise. A bid is considered not made in "Good Faith" when an insolvent or irresponsible person, or a person under the age of eighteen makes it. Regardless of the disclosure of his identity, any bid by a consignor or his agent on a lot consigned by him is deemed to be made in "Good Faith".
<p>All items are to be purchased per lot as numerically indicated and no lots will be broken. The Auctioneer reserves the right to withdraw, prior to the close, any lot or lots from the auction. Bids will be accepted in whole dollar amounts only.
<p>No "buy" or "unlimited" bids will be accepted. Bidders will be awarded lots at approximately the increment of the next highest bid. No additional commission is charged for executing bids other than the Buyer's Premium applied to all successful bids. Off-increment bids may be accepted by the Auctioneer at Signature auctions.
<p>Estimates will be given upon written request. It is recommended that Bidders approach or exceed the estimates in order to increase the chances of bidding successfully.
<p>Auctioneer reserves the right to rescind the sale in the event of nonpayment, breach of a warranty, disputed ownership, auctioneer's clerical error or omission in exercising bids and reserves, or otherwise.
<p>Outage Policy: Auctioneer occasionally experiences Internet and/or Server outages during which Bidders cannot participate or place bids. If such outage occurs, we may at our discretion extend bidding for the auction up to 24 hours. At our discretion, Auctioneer may consider two outages that occur very closely to one another to be one outage when extending such auction. This policy applies only to widespread outages and not to isolated problems that occur in various parts of the country from time to time.
<p>Scheduled Downtime: Auctioneer periodically schedules system downtime for maintenance and other purposes; this scheduled downtime is not covered by the Outage Policy.
<p>The Auctioneer or affiliates may consign items to be sold in this auction, and may place reserve bids on those items or any other in the auction. The Auctioneer or affiliates expressly reserve the right to modify any such reserve bids on these items or any others at any time prior to the live auction or the online closing based upon data made known to the Auctioneer or its affiliate.
<p>The Auctioneer may extend advances, guarantees, or loans to certain consignors, and may extend financing or other credits at varying rates to certain Bidders in the auction.
<p><b>Payment: </b>
<p>All sales are strictly for cash in United States dollars. Cash includes: U.S. currency, bank wire, cashier checks, travelers checks, and bank money orders, all subject to reporting requirements. Credit Card (Visa or Master Card only) payments may be accepted up to $10,000 from non-dealers at the sole discretion of the auctioneer, subject to the following limitations: a) sales are only to the cardholder, b) purchases are shipped to the cardholder's registered and verified address, c) Auctioneer may preapprove the cardholder's credit line, d) a credit card transaction may not be used in conjunction with any other financing or extended terms offered by the Auctioneer, and must transact immediately upon invoice presentation, e) rights of return are governed by these Terms and Conditions, which supersede those conditions promulgated by the card issuer, f) floor Bidders must present their card. Personal or corporate checks may be subject to clearing before delivery of the purchases.
<p>Payment is due upon closing of the auction session, or upon presentment of an invoice. The Auctioneer reserves the right to void a sale if payment in full of the invoice is not received within 7 days after the close of the auction.
<p>Lots delivered in the States of Texas, California, or other states where the auction may be held, are subject to all applicable state and local taxes, unless appropriate permits are on file with us. Lots from different auctions may not be aggregated for sales tax purposes.
<p>In the event that a Bidder's payment is dishonored upon presentment(s), Bidder shall pay the maximum statutory processing fee set by applicable state law.
<p>If the auction invoice(s) submitted by the Auctioneer is not paid in full when due, the unpaid balance will bear interest at the highest rate permitted by law from the date of invoice until paid. If the Auctioneer refers the invoice(s) to an attorney for collection, the buyer agrees to pay attorney's fees, court costs, and other collection costs incurred by the Auctioneer. If Auctioneer assigns collection to its in-house legal staff, such attorney's time expended on the matter shall be compensated at a rate comparable to the hourly rate of independent attorneys.
<p>In the event a successful Bidder fails to pay all amounts due, the Auctioneer reserves the right to resell the merchandise, and such Bidder agrees to pay for the reasonable costs of resale, including a 10% seller's commission, and also to pay any difference between the resale price and the price of the previously successful bid.
<p>The Auctioneer reserves the right to require payment in full in good funds before delivery of the merchandise to the buyer.
<p>The Auctioneer shall have a lien against the merchandise purchased by the buyer to secure payment of the auction invoice. Auctioneer is further granted a lien and the right to retain possession of any other property of the buyer then held by the Auctioneer or its affiliates to secure payment of any auction invoice or any other amounts due the Auctioneer from the buyer. With respect to these lien rights, the Auctioneer shall have all the rights of a secured creditor under Article 9 of the Texas Uniform Commercial Code. In addition, with respect to payment of the auction invoice(s), the buyer waives any and all rights of offset he might otherwise have against the Auctioneer and the consignor of the merchandise included on the invoice.
<p>If a Bidder owes Auctioneer or its affiliates on any account, the Auctioneer and its affiliates shall have the right to offset such unpaid account by any credit balance due Bidder, and it may secure by possessory lien any unpaid amount by any of the Bidder's property in their possession.
<p>Title shall not pass to the successful Bidder until all invoices are paid in full. It is the responsibility of the buyer to provide adequate insurance coverage for the items once they have been delivered.
<p><b>Return Policy: </b>
<p>Signature Sales: The auction is not on approval. No certified material may be returned because of possible differences of opinion with respect to the grade offered by any third-party organization, dealer, or service. There are absolutely no exceptions to this policy. Under extremely limited circumstances, (e.g. gross cataloging error) a purchaser, who did not bid from the floor, may request Auctioneer to void a sale. Such request for evaluation must be made in writing detailing the alleged gross error, and submission of the lot to the Auctioneer must be preapproved by the Auctioneer. A Bidder must notify Jack Hinton, (ext. 312) in writing of the Bidder's request and such notice must be mailed within three (3) days of the mail Bidder's receipt of the lot. Any lot that is to be evaluated must be received in our offices within 30 days from the date of auction. Grading or method of manufacture do not qualify for this evaluation process nor do such complaints constitute a basis to challenge the authenticity of a lot. AFTER THAT 30-DAY PERIOD, NO LOTS MAY BE RETURNED FOR REASONS OTHER THAN AUTHENTICITY. Lots returned must be housed intact in the original holder. No lots purchased by floor Bidders may be returned (including those Bidders acting as agents for others). Late remittance for purchases may be considered just cause to revoke all return privileges.
<p>Exclusively Internet, CurrencyAuction.com, Amazing Comics Auctions™ and Bullet auctions: THREE (3) DAY RETURN POLICY. All lots paid for within seven days of the auction closing are sold with a three (3) day return privilege. You may return lots under the following conditions: Within three days of receipt of the lot, you must first notify Auctioneer by contacting Customer Service by phone (1-800-872-6467) or e-mail (bids@HeritageCoin.com), and immediately mail the lot(s) fully insured to the attention of Returns, care of Heritage Plaza, 100 Highland Park Village 2nd Floor, Dallas TX 75205. Lots must be housed intact in their original holder and condition. You are responsible for the insured, safe delivery of any lots. A non-negotiable return fee of 5% of the purchase price ($10 per lot minimum) will be deducted from the refund for each returned lot or billed directly. Postage and handling fees are not refunded. After the three-day period (from receipt), no items may be returned for any reason. Late remittance for purchases revokes all Return-Restock privileges.
<p>All Bidders who have inspected the lots prior to the auction will not be granted any return privileges, except for reasons of authenticity.
<p><b>Delivery: </b>
<p>Postage, handling and insurance charges will be added to invoices. Please either refer to Auctioneer's web site www.HeritageCoin.com or www.HeritageComics.com for the latest charges or call Auctioneer.
<p>Auctioneer is unable to combine purchases from other auctions or Heritage Rare Coin Galleries into one package for shipping purposes. Successful overseas Bidders shall provide written shipping instructions, including specified customs declarations, to the Auctioneer for any lots to be delivered outside of the United States.
<p>All shipping charges will be borne by the successful Bidder. Any risk of loss during shipment will be borne by the buyer following Auctioneer's delivery to the designated common carrier.
<p>Regardless of domestic or foreign shipment, risk of loss shall be borne by the buyer following Auctioneer's delivery to a shipper.
<p>Any claims for undelivered packages must be made within 30 days of shipment by the auctioneer.
<p>In the event an item is damaged either through handling or in transit, the Auctioneer's maximum liability shall be the amount of the successful bid including the Buyer's Premium.
<p><b>Cataloging: </b>
<p>The descriptions provided in any catalog are intended solely for the use of those Bidders who do not have the opportunity to view the lots prior to bidding.
<p>Any description of the lots contained in this auction is for the sole purpose of identifying the items.
<p>In the event of an attribution error, the Auctioneer may, at the Auctioneer's sole discretion, correct the error on the Internet, or, if discovered at a later date, to refund the buyer's money without further obligation. Under no circumstances shall the obligation of the Auctioneer to any Bidder be in excess of the purchase price for any lot in dispute.
<p><b>Warranties and Disclaimers: </b>
<p>NO WARRANTY, WHETHER EXPRESSED OR IMPLIED, IS MADE WITH RESPECT TO ANY DESCRIPTION CONTAINED IN THIS AUCTION. Any description of the items contained in this auction is for the sole purpose of identifying the items, and no description of items has been made part of the basis of the bargain or has created any express warranty that the goods would conform to any description made by the Auctioneer.
<p>Auctioneer is selling only such right or title to the items being sold as Auctioneer may have by virtue of consignment agreements on the date of auction and disclaims any warranty of title to the coins.
<p>Auctioneer disclaims any warranty of merchantability or fitness for any particular purposes.
<p>Auctioneer disclaims all liability for damages, consequential or otherwise, arising out of or in connection with the sale of any property by Auctioneer to Bidder. No third party may rely on any benefit of these Terms and Conditions and any rights, if any, established hereunder are personal to the Bidder and may not be assigned. Any statement made by the Auctioneer is a statement of opinion and does not constitute a warranty or representation. Any employee of Auctioneer may not alter these Terms and Conditions, and, unless signed by a principal of Auctioneer, any alteration is null and void.
<p>Coins sold referencing a third-party grading service ("Certified Coins") are sold "as is" without any express or implied warranty, except for a guarantee by Auctioneer that the Certified Coins are genuine. Certain warranties may be available from the grading services and the Bidder is referred to the following services for details of any such warranties: ANACS, P.O. Box 182141, Columbus, Ohio 43218-2141; Numismatic Guaranty Corporation (NGC), P.O. Box 4776, Sarasota, FL 34230; Professional Coin Grading Service (PCGS), PO Box 9458, Newport Beach, CA 92658 and ICG, 7901 East Belleview Ave., Suite 50, Englewood, CO 80111. Comic books sold referencing a third-party grading service ("Certified Comics") are sold "as is" without any express or implied warranty, except for a guarantee by Auctioneer that the Certified Comics are genuine. Certain warranties may be available from the grading services and the Bidder is referred to the following services for details of any such warranties: Comics Guaranty Corporation (CGC), P.O. Box 4738, Sarasota, FL 34230. Currency sold referencing a third-party grading service ("Certified Currency") are sold "as is" without any express or implied warranty, except for a guarantee by Auctioneer that the Certified Currency are genuine. Certain warranties may be available from the grading services and the Bidder is referred to the following services for details of any such warranties: Currency Grading & Authentication (CGA), PO Box 418, Three Bridges, NJ 08887.
<p>All non-certified coins and comics and currency are guaranteed genuine, but are not guaranteed as to grade, since grading is a matter of opinion. Grading is an art, not a science, and therefore the opinion rendered by the Auctioneer or any third party grading service may not agree with the opinion of others (including trained experts), and the same expert may not grade the same coin with the same grade at two different times. Auctioneer has graded the non-certified items, in the Auctioneer's opinion, to their current interpretation of the American Numismatic Association's standards as of the date the catalog was prepared. There is no guarantee or warranty implied or expressed that the grading standards utilized by the Auctioneer will meet the standards of ANACS, NGC, PCGS, ICG, CGC, CGA or any other grading service at any time in the future.
<p>Auctioneer offers no opinion as to the validity of a grade assigned by any third-party grading service. Since we cannot examine C.G.A. encapsulated notes or Comics Guaranty Corporation (CGC) encapsulated comics, they are sold "as is" without our grading opinion, and may not be returned for any reason. Auctioneer shall not be liable for any patent or latent defect or controversy pertaining to or arising from any encapsulated collectible. In any such instance, purchaser's remedy, if any, shall be solely against the certification service certifying the collectible.
<p>Due to changing grading standards over time and to possible mishandling of items by subsequent owners, the Auctioneer reserves the right to grade items differently than shown on certificates from any grading service that accompany the items. For the same reasons as stated above, the Auctioneer reserves the right to grade items differently than the grades shown in the catalog should such items be reconsigned to any future auction.
<p>Although consensus grading is employed by most grading services, it should be noted as aforesaid that grading is not an exact science. In fact, it is entirely possible that if a lot was broken out of a plastic holder and was resubmitted to another grading service or even the same service, the lot could come back a different grade. Certification does not guarantee protection against the normal risks associated with potentially volatile markets.
<p>The degree of liquidity for certified coins and collectibles will vary according to general market conditions and the particular lot involved. For some lots there may be no active market at all at certain points in time.
<p><b>Release: </b>
<p>In consideration of participation in the auction and the placing of a bid, a Bidder expressly releases Auctioneer, its affiliates, the Consignor, or Owner of the Lot from any and all claims, cause of action, chose of action, whether at law or equity or any arbitration or mediation rights existing under the rules of any professional society or affiliation based upon the assigned grade or a derivative theory, breach of warranty express or implied, representation or other matter set forth within these Terms and Conditions of Auction or otherwise, except as specifically declared herein; e.g., authenticity, typographical error, etc., and as to those matters, the rights and privileges conferred therein are strictly construed and is the exclusive remedy. Purchaser by non-compliance to its express terms of a granted remedy, shall waive any claim against Auctioneer.
<p><b>Dispute Resolution and Arbitration Provision: </b>
<p>By placing a bid or otherwise participating in the auction, such person or entity accepts these Terms and Conditions of Auction, and specifically agrees to the alternative dispute resolution provided herein. Arbitration replaces the right to go to court, including the right to a jury trial.
<p>If any disputes arise regarding payment, authenticity, grading or any other matter pertaining to the auction, the Bidder or a participant in the auction and/or the Auctioneer agree that the dispute shall be submitted, if otherwise mutually unresolved, to binding arbitration in accordance with the rules of the Professional Numismatists Guild (PNG) or American Arbitration Association (A.A.A.). The A.A.A. arbitration shall be conducted under the provisions of the Federal Arbitration Act with locale in Dallas, Texas. If an election is not made within ten (10) days of an unresolved dispute, Auctioneer may elect either PNG or A.A.A. Arbitration. An award granted in arbitration is enforceable in any court. No claims of any kind (except for reasons of authenticity) can be considered after the settlements have been made with the consignors. Any dispute after the settlement date is strictly between the Bidder and consignor without involvement or responsibility of the Auctioneer.
<p>In consideration of his participation in or application for the auction, a person or entity (whether the successful Bidder, a Bidder, a purchaser and/or other Auction participant or registrant) agrees, that all disputes in any way relating to, arising under, connected with, or incidental to these Terms and Conditions and his purchases or default in payment thereof shall be arbitrated pursuant to the arbitration provision. In the event that any matter including actions to compel arbitration, construe the agreement, actions in aid or arbitration or otherwise needs to be litigated, such litigation shall be exclusively in the Courts of the State of Texas, in Dallas County, Texas, and if necessary the corresponding appellate courts. The successful Bidder, purchaser, or Auction participant also expressly submits himself to the personal jurisdiction of the State of Texas.
<p><b>Miscellaneous: </b>
<p>Agreements between Bidders and consignors to effectuate a non-sale of an item at auction, inhibit bidding on a consigned item to enter into a private sale agreement for an item, or to utilize the Auctioneer's auction to obtain sales for non-selling consigned items subsequent to the auction are strictly prohibited. If a subsequent sale of a previously consigned item occurs in violation of this provision, Auctioneer reserves the right to charge Bidder the 15% Buyer's Premium and consignor a 10% Seller's Commission.
<p>Acceptance of these terms and conditions qualifies Bidder as a Heritage customer who has consented to be contacted by Heritage in the future, and as such, and irrespective of any regulation or "do-not-call" list forbidding contact without consent, Bidder agrees that until this consent is revoked in writing, Heritage may from time to time contact Bidder concerning sale, purchase and auction opportunities available through Heritage and its affiliates and subsidiaries.
<p>Storage of purchased coins: Purchasers are advised that certain types of plastic may react with the coin's metal and may cause damage to the coins. Caution should be used to avoid storage of coins in materials that are not inert.
<p><b>State Notices: </b>
<p>Notice as to an Auction Sale in California. Auctioneer has in compliance with Title 2.95 of the California Civil Code as amended October 11, 1993 Sec. 1812.600, posted with the California Secretary of State its bonds for it and its employees and the auction is being conducted in compliance with Sec. 2338 of the Commercial Code and Sec. 535 of the Penal Code.