Langdon & Ainsworth v. Bowen

The opinion of the court was delivered by Pierpoint, Ch. J. The application of the payments made by the defendant, is material in this case, only as it bears upon the question as to the legality of the action of the ' court below in granting the certificate that the cause of action arose from the willful and malicious act or neglect of the defendant, and that he ought to be confined in close jail. It appears that a part of. the plaintiffs’ claim consists of moneys of the plaintiffs received by the defendant from time to time in a fiduciary capacity, and a part for goods sold and delivered. Upon this claim, payments were made by the defendant at different times, that were credited by the plaintiffs when made, neither party making any particular application of such payments. The connty court, in adjusting this claim, applied the moneys in payment of the items of charge as they first accrued; the result being,that the amount remaining due was for moneys received by the defendant in a fiduciary capacity, and granted the certificate as required by the statute. The rule is well settled in this state, that when there are current accounts, ate in this case, and no application made of payments, by either party, the law applies the payments in the order of time, the first item on the debtor side being discharged by the first item on the credit side. This rule is not universal. If it appears that the intention of the parties was otherwise, the courts will give effect to that intention. If the plaintiff’s claim consists of separate debts, part of which are secured and part not, the application will be made upon those that are not secured. If in this case the right to a certified execution constitutes a security for the payment of the money, it furnishes an additional reason in support of the application of the payments in the manner made by the county court. There is nothing in the case tending to show that the defendant, at the time of making the payments, intended [516] or contemplated any different application. It is probable that the idea of a certified execution had not, at that time, entered the mind of either, party. We think there was no error in the manner of making the application in this case. But, it is said the defendant was prevented from paying over the money he received, by accident, so as to bring the case within the exception in the statute. The statute requires the court to grant the certificate in a case like the present, unless the court shall be satisfied that the failure of the defendant to account for. the money received, was occasioned by accident, and without the fault of the defendant. The court found that the defendant failed to pay over the money, on account of misfortunes in his business. Such a misfortune clearly is not such an accident as the statute contemplates ; besides, the very reason why the certificate is granted in this case, is the fault of the defendant in appro-' priating the money to his own use, and thereby subjecting it to the risks and misfortunes of his own business.. Judgment affirmed.