Lyon v. Witters

TAFT, J. The defendants, in July, 1876, bought a piano-of the plaintiff at an agreed price of three hundred and fifty dollars. They paid fifty dollárs in cash, and executed three notes for one hundred dollars each for the remainder of the price. On the first day of September, 1876, they paid fifty dollars upon the first note, which the plaintiff failed to endorse. It was a payment upon the note, and although not endorsed, the law applied it in extinguishment of it fro' tanto. Subsequently the defendants paid the plaintiff, in addition to the fifty dollars, and without regard to it, enough to pay the three notes in full. It does not appear that the defendants directed the application of any of the payments,, except the one made on the said first day of September. The plaintiff applied enough of them upon the first note to pay it, disregarding the payment of fifty dollars made upon it as above stated. He had no right to apply but fifty dollars and the interest upon it, as that paid the note. The remainder of the payments which he indorsed upon it should have been endorsed upon the notes subsequently falling due. He had no right to apply payments upon an extinguished or paid note. Applying the fifty dollars upon the first note the jury found that the defendants had paid enough to extinguish all the notes. In this view of the case, the admission of the evidence and the charge of the court were correct. The defendants are not seeking to recover payments made upon the notes, but insisting upon a proper application of them. Therefore the authorities cited by the plaintiff are not applicable. . The defendants are not estopped from setting up this de-fence by reason of their promise to pay any balance due upon the note in suit, and the plaintiff’s withdrawal of the [399] note from the collection office. There was no consideration for their promise, for nothing was due upon the note. The delay in the attempt to collect it neither injured the plaintiff, nor benefited the defendants. A case much in point upon this question is Goodell v. Brandon Nat. Bank, 63 Vt. 303. Judgment affirmed.