Beacon Lamp Co. v. Lombard , 165 Minn. 480 ( 1925 )

¹ Reported in 205 N.W. 889. 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.