¶1Plaintiffs 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, un*341less it is so agreed; and, where it is returned and used by the debtor, the debt remains.
¶2Judgment reversed, and ease remanded, with directions to rendef judgment for the plaintiffs.