
    BEACON LAMP COMPANY v. E. V. LOMBARD.
    
    November 20, 1925.
    No. 24,943.
    No merit in appeal.
    Appeal held to be without merit.
    See Pleading, 31 Cyc. p. 629.
    Action in the municipal court of Lake City. The ease was tried by Doughty, J., who ordered judgment in favor of plaintiff. Defendant appealed to the district court for Wabasha county where the appeal was heard by Callaghan, J., who affirmed the judgment of the municipal court. Defendant appealed from the judgment.
    Affirmed.
    
      George H. Hammond,, for appellant.
    
      Phillips & Lindmeier, for respondent.
    
      
       Reported in 205 N. W. 889.
    
   PER CURIAM.

Action for the agreed price of merchandise. Upon the trial in the municipal court of Lake City, there was a decision for plaintiff and defendant appealed to the district court where, upon motion, his answer was stricken as sham and judgment ordered for plaintiff. Defendant appeals.

Admitting the correctness of the account sued upon, defendant, after the service of the summons upon him, instead of tendering payment to plaintiff’s attorneys who resided in Lake City, sent his personal check to plaintiff at Chicago. The check was for the face of the claim and did not include anything for interest or accrued costs. It was not accepted by plaintiff in payment of the claim, but was transmitted to its attorneys who, at the trial in the municipal court, “tendered back said check to defendant.” It has not been paid. These facts appearing to the district court by the record, supplemented by the affidavit of one of the plaintiff’s attorneys, and there being no contradiction, the answer was clearly sham and was properly stricken as such. The only defense it tendered was payment. The only payment claimed was by the check, which, of course, was not payment. There was' no issue to try. There was no defense and judgment was properly ordered for plaintiff. There is no merit in the appeal.

Judgment affirmed.  