Horne v. Planters' Bank

[9] By the Court. Lumpkin, J., delivering the opinion. Is the verdict in this case so strongly and decidedly against the weight of evidence as to constrain this Court to grant a new trial, notwithstanding an application for this purpose was refused by the Circuit Judge who heard the cause ? This is the only question argued before this Court. . It is immaterial whether it was the understanding or not, between Horne and Hampton, at the time the note sued on was endorsed, that the proceeds of Hampton’s cotton crop forwarded to Eabun & Fulton, to whom the note was given, should be applied to its payment, unless notice was communicated to Eabun & Fulton, they cannot be affected by the agreement; and, on the other hand, if Hampton directed them so to appropriate the cotton, they were bound by his instructions. The trouble is, there is not only the want of satisfactory and sufficient proof that Hampton gave such directions, but there is the positive testimony of Brantly, the book-keeper of Eabun & Fulton, and who transacted this whole business, that no such directions ever were given. And there are strong corroborating circumstances, as well as this direct evidence, against the defence. I copy, verbatim, the testimony of Andrew Y. Hampton, the only witness sworn in support of the defence. He says : “ The note, the foundation of this suit, was given to Eabun & Fulton, and given by witness, and given for the purpose of witness’ own benefit. Horne was only bound as endorser, and signed it as such. Defendant signed it upon condition and understanding that out of the proceeds of witness’ cotton, that should be sent to Eabun & Fulton, the note should be paid; witness thmJcs the defendant delivered the note to payee upon the understanding and agreement that Eabun & Fulton was to apppropriate the proceeds of the first of witness’ crop to the payment of the note.” Correct the manifest and manifold mistakes in the depositions of witness, as taken down, and assume what is likely true, that Mr. Hampton meant to swear that he thinks he [10] delivered the note to Rabun & Fulton with the understanding that the first of his cotton crop was to be appropriated to the payment of this note. Testimony thus doubtingly given, if uncontradicted, would be too weak to control the finding of the jury in a case like this. Indeed, while we would not impute to Mr. Hampton a want of veracity, as it respects this transaction, yet it is apparent that his testimony is too vague to be reliable. He does not recollect how much cotton he made in 1851; does not recollect whether he sent the whole or a part only to Rabun & Fulton; does not recollect whether they rendered him an account of sale, etc.; he does not recollect whether he said to plaintiffs that all was right; he might or he might not. He is pretty sure he did whatever he promised; and this is the nearest he comes to a positive affirmation about anything. And it is rather strange that he should be rather sure that he did what he promised, seeing that he neither remembers what he did nor what he promised about anything. On the other hand, W. S. Branfcly gives a minute account of all the dealings between the parties, when they began, when they terminated, the heavy balance due to Rabun & Fulton by Hampton, for cash purchases and sight drafts, made and accepted on his acoount; of the appropriation of his cotton crop, etc., furnishing Hampton with the account of sale, and the application of all the proceeds, and Hampton’s approval, and utterly denies of ever hearing of the under 7 standing and agreement which Hampton thinks he communicated. It is the most improbable thing in the world, the account which the defendant, through his counsel, gives of this case. He -says, in the. face of the account hereto attached, that Hampton owed the plaintiffs nothing when the note was given to them; and Hampton testifies that he did not owe Rabun & Fulton anything at the time of making this note, and thinks it was their first dealing. " This is a very unreasonable statement. By reference to the account accompanying the statement, it will be perceived that the dealings between the parties commenced in Febru [11] ary, 1851, and this note was not given till the 25th of November thereafter! The truth is, that after crediting Hampton with the entire proceeds of his cotton crop, and the cash for which this Horne note was discounted in bank, $1,978 62, it only left a balance coming to Hampton of $87 '71! This being the state of indebtedness of Hampton, is it not the most improbable thing in the world that Rabun & Fulton should have agreed, when they took this note to save themselves, that they would pay it out of Hampton’s cotton crop ? What benefit would it have been to them to take the note under such circumstances ? Why not apply the cotton crop to their current account, instead of raising money upon this note, for this purpose, and then promising to pay the note with the cotton ? And if the giving this note was the first of their dealings, what was it given for ? Rather a strange way to commence dealings between the planter and commission merchant or cotton factor. B.ut it is useless to waste more time upon this subject. The question is too plain. When a former suit was brought on this note against Hampton and Horne, jointly, Hampton claimed a credit of $500, as the balance due him on Rabun & Fulton’s books, and said not one word about this agreement. And that as we have shown, was $415 29 more than he was entitled to— the true balance being $87 71. In matters of account, it often becomes a material inquiry where payments are made, and there are several items of indebtedness, who is entitled to make the appropriation, and how in case the debtor omits to declare his intention, the law will apply the payments? There is no doubt but a person indebted to the same creditor, on different accounts or demands, making payment, may apjily the payment to any demand he pleases. Hence I remarked that it was wholly immaterial as to any understanding between Hampton and Horne, as Hampton had the right to direct the proceeds of his cotton, sold after this note was given, to be applied to the payment of the note, if he so pleased. If the debtor fail [12] to make the appropriation, the creditor may make such application as he pleases. The civil law compels the creditor to substitute himself in place of the debtor, and apply the payment to that debt which' he would first have discharged if he were the debtor. (For the civil law rule, as to the appropriation of payments, see Domat Cushing’s Edition 905, et seq.) But Chief Justice Marshall, in an early case before the Supreme Court, Field vs. Holland, 6 Cranch 8, 27, expressed dissatisfaction with the rule of the civil law, which makes the application in a manner most favorable to the debtor and his wishes. He said : “ When a debtor fails to avail himself of the power which he possesses, in consequence of which that power devolves on the creditor, it does not appear unreasonable to suppose that he is content with the manner in which the creditor will exercise it. It being equitable that the whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious.” And this is, we think, the weight of authority in this country, and the Courts have gone so far as to hold, that a security, or accommodation endorser, cannot be relieved at the expense of the creditor. To furnish a key to the cases upon this interesting subject, I would cite the following : Gordon vs. Hobart, 2 Story’s Rep., 243; Bossanquet vs. May, 6 Taunton, 597 ; Brooks vs. Enderby, 2 Br. & Bing, 70; Mann vs. March, 2 Caine’s Rep., 99; Roberts vs. Garnie, 3 Caine’s 14; Baker vs. Stackpole, 9 Cowen, 435; Peters vs. Anderson, 5 Taunton, 596 ; Newmarch vs. Clay, 14 East, 239; United States vs. Kirkpatrick, 9 Wheaton, 720; Moss vs. Adams, 4 Iredell’s Eq., 42; Ayers vs. Hawkins, 19 Verm, 26 ; Logan vs. Mason, 6 Watts & Seig. 9; Stone vs. Seymour, 15 Wend, 29. Judgment affirmed.