Plaintiff’s suit is based on a claim for labor of himself and his minor son and for fuel wood, amounting to $102.93.

The defense is payment.

*638It seems that plaintiff was engaged by Lyons under whose personal supervision, his services were rendered in and about a gravel pit operated by defendant firm. That at the time suit was institued, Lyons had left or withdrawn from the. work, so that Kruebbe the senior member of the firm knew little or nothing of plaintiff’s right to the claim in suit. Kruebbe found among the papers of the firm three can-celled checks collected by plaintiff and upon this evidence he filed the plea of payment.

The district judge found as a matter of fact that the checks had been given in satisfaction of other claims due to plaintiff, and he therefore rendered judgment as prayed for.

The evidence is by no means clear or convincing. There is no doubt that plaintiff was employed by the defendant firm and it appears that he was discharged about December 26, 1922, that he received the amounts' included in these checks aggregating $114.24, the last check being dated the day he was discharged. Plaintiff swears however, that he never was paid the labor and fuel for which he presently sues, and his testimony is not positively contradicted. The district judge believed him and we see no reason to reverse that finding.

Judgment appealed from is affirmed.