dissent"> TRIMBLE, J.

(dissenting). — Defendant’s evidence concedes' that, at the time the check was handed by him to plaintiff, there was due for rent either $5.90 or $6.40. He also testified that plaintiff asked him for his rent and when he handed plaintiff the cheek on the street, nothing occurred between them, plaintiff just took the check, and defendant “supposed” plaintiff read it all; but that the next day plaintiff brought the check back to him, saying he could not accept it because it was marked “paid in full” and contending defendant owed him more. Defendant did not take the check back but replied, “Well, that is all I am, going to pay you, that is all I owe you.”

Plaintiff then went to the justice’s office and brought suit and attached the check to the statement filed with *543 the justice, and the check thus attached went with the statement to the circuit court when the case went there on appeal. The check was there marked filed by the circuit clerk. It, therefore, conclusively appears that the check was not payment, or it was not accepted as such. It is universally held that a check is not payment of a debt unless it is both given and accepted as such. In McMurray v. Taylor, 30 Mo. 263, l. c. 266, it is said: “A note does not extinguish an open account. Upon production of the note a recovery may be had on the account.” A check given under the conceded facts of this case could no more extinguish the open account than could a note. When suit was filed in the justice court the check was produced and filed in court and has continued to be filed in court ever since and was introduced in evidence. The check cannot operate or be treated as a legal tender because it does not constitute legal tender and was not made in the manner the statute provides that tender shall be made. Under the evidence of both parties, plaintiff did not keep the check under any agreement that it would be payment or that he would cash it; and practically ever since plaintiff took it back to defendant who refused to receive it, said check has been in court. The only value the check can have to defendant is that it is not in the hands of someone who can, by cashing it, cause defendant to lose the amount of the same. The following quotation from R. C. L., sec. 58, p. 59, is applicable here: “It is a well-established rule that where a negotiable bill or note has been received on account of a debt, but without an express agreement to accept it as final satisfaction thereof, a recovery cannot be had on the original obligation without a surrender of the negotiable paper, or a satisfactory explanation of its nonproduction, or unless it appears that it cannot be enforced by a third person. The reason for the rule is,'not that the debt has been paid, but that a suit might afterwards be brought by the indorsee, and so the party might be compelled to pay the debt a second time. The *544 production of the note then is generally required, for the security of the defendant, and not from any rule of evidence which would prevent the introduction of evidence of indebtedness without the production of the note. It is not necessary to cancel the note in form. The reason of the rule is satisfied by its production and its being placed at the disposal of the court. It is a sufficient compliamce with the rule if the plaintiff has the note in his possession at the commencement of the suit and surrenders it in court at the trial.” As stated in the McMnrray case, snpr,a, the defendant was in no way injured by the giving of the cheek.

The check did not become payment, and since it was conceded that at the time it was given defendant owed plaintiff in some amount, it seems to me the court erred in refusing to give plaintiff’s instructions 1 and 2 as follows:

“No. 1.

The court instructs the jury that under the evidence in this case, your verdict must be for plaintiff, and that the only question for you to determine is how much you shall award plaintiff.

No. 2.

The court instructs the jury that the check offered in evidence and read to the jury for the sum of six dollars, does not constitute a payment of that sum or any other sum and that in making up your verdict, if you find for plaintiff, you should not deduct anything from your verdict on account of said check and the court further instructs you that said check cannot deprive plaintiff of a verdict, if you find and believe from the evidence, that defendant owes plaintiff anything, notwithstanding that the amount that you may so find defendant owes plaintiff may be the same amount or a less amount than the check in question. ’ ’

For these reasons, as I view the case, the judgment should be reversed and the cause remanded for a new trial.

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