On July 29, 1907, plaintiff loaned the defendant $5,000, and sues to recover a balance of $3,000, alleged to be due and unpaid. The defense is payment. There was judgment for the plaintiff, and the defendant has appealed.

Defendant contends that the balance of $3,-000 was paid August 30, 1907, by his check to order of E. M. Stafford, who was his son-in-law and agent. Both McFall and Stafford testified that the plaintiff never received this check, or the proceeds thereof, and the testimony of Stafford, corroborated by contemporary written evidence, shows that said cheek was used by him in the payment of a note of defendant for $5,000, given in another transaction, and falling due on August 30, 1907.

Judgment affirmed.