
    Emanuel Good and another vs. Nathaniel M. Singleton.
    November 8, 1888.
    Payment by Check — Beturn of Cheek. — Payment by check is not absolute, but conditional, unless expressly so agreed, and where a cheek is returned by the creditor, and used by the debtor, the debt remains.
    Appeal by plaintiff from a judgment of the municipal court of St. Paul, affirming that of a justice of the peace. The action was for goods sold, and one defence was payment.
    
      E. B. Holcombe, for appellants.
    
      Chamberlain & Countryman, for respondent.
   Vanderburgh, J.

Plaintiffs were entitled to judgment for the amount of their claim. The evidence fails to establish the defendant’s plea of payment. He claims to have paid the amount due by certified check. But the check it appears was returned to him, received, indorsed by him, and collected of the bank. This is the fair inference to be derived from the evidence, in which there is no conflict. He, and not plaintiffs, then, has had the benefit of the check. If he relied upon the circumstance of the delivery of the check as payment, he should have retained and produced it on the trial for the use of the plaintiffs. But the giving of a cheek for the amount of the debt by the debtor to his creditor is not absolute payment, unless it is so agreed; and, where it is returned and used by the debtor, the debt remains.

Judgment reversed, and ease remanded, with directions to rendef judgment for the plaintiffs.  