Thayer & White v. Denton

By the Cotirt, Bacon, J. The remark made by Benton when the witness, Athelia Beckley, paid him the $75, with directions to apply the same on the note in question, “ very well, I understand it,” was an express assent to apply the money according to such direction. If he did not wish to make such application, it was his duty so to have informed the witness Beckley, who, for the purpose of making the payment, was the agent of White, and he should have refused to receive the money. The debtor has a right to say on which of several notes or demands his payment is to be applied. Among numerous cases to this effect, we cite : 17 Mass., 575; Hull vs. Manton, 20 Pick., 441; Reed vs. Boardman, 12 Pick., 463; Bonaffe vs. Woodberry. The money being thus applied, by the agreement of the parties, it operated to extinguish so much of the interest and principal of the note as was equal to the amount paid. This is well illustrated in the case of Am. Bank vs. Jenness (2 Metc., 288), where the maker of a note paid it, but did not take it up. The holder of the note afterwards sold it. The [197] Court held, that the payment by the maker extinguished it, and that having been sold when past due, it was of no validity in the hands of the purchaser. It is contended, however, by the plaintiff, that a subsequent agreement was made on the 11th of May, 1853, by White, one of the defendants, and himself, at a settlement of their private matters, that the sum of seventy-five dollars, which had been paid on the note in question in the month of October preceding, should apply on their individual matters, which were then settled between them, thereby changing the application of the payment from the joint debt of the defendants to the individual debt of White alone. It is to be borne in mind that the note in this suit is the joint and several note of the defendants; that it does not appear that Thayer agreed to the arrangement which was said to have been made between the plaintiff and White on the 11th of May, 1853, or that he ever knew of it; nor does it appear whether the seventy-five dollars which were paid, were furnished by one or both of the defendants. Whatever the fact may have been, White alone could not change the payment from the joint note of himself and Thayer, to his individual account. If it could be changed at all, it could only be done by the agreement of both defendants with the plaintiff We are also to notice that the only proof of this new agreement, is an admission which was made before the Justice, at the time when judgment was entered on both notes. Such evidence is generally looked upon as very weak, and of the most unsatisfactory character. We need not, however, have recourse to this evidence to decide the case before us. It seems to be conceded by the plaintiff, that the seventy-five dollars paid by White were applied on the note of the defendants. The proof made by the plaintiff himself is this: “White then and there consented that the seventy-five dollars which had previously leen paid upon the note m this suit, should be applied upon the indi [198] vidual matters then settled between the plaintiff and White.” The plaintiff has thus furnished proof in addition to what had already been shown by the defendants, that the seventy-five dollars had been paid on the note in question. Thayer not having consented to any change as> to the application of the payment, has the right to insist on its remaining where the parties placed it. It might be a fraud on him to apply it elsewhere. We think that the judgment of the Circuit Court was erroneous, and should be reversed with costs. Present, Bacon, Pratt, Wins, Green, Johnson, Copeland, Martin, J. J. Douglass, J., did not participate, having decided the cause in the Court below.