Lowery v. Gear

Mr. Chief Justice Caton, delivered the opinion of the court: We have examined the questions of law raised in this case, and find no error in the decisions of the court upon the admission of the testimony, or in the instructions, of which the plaintiff can complain. The real question in the case is, as to the sufficiency of the evidence to sustain the verdict. Two defenses were relied upon. One, the statute of limitations, and the other a want, or failure of consideration. If the evidence is sufficient to sustain the verdict upon either of these defenses it must be allowed to stand. We shall confine ourselves to the consideration of the first defense. To the plea of the statute of limitations the plaintiff replied anew promise. This averment of a new promise, the jury have said by their verdict, was not sustained by the proof. The plaintiff relied upon an implied new promise arising upon the fact of a payment made hy the defendant upon the note within sixteen years. If the proof shows that, in fact, such a payment was made upon the note, then the law implies therefrom a new promise to pay the note. Two indorsements of payments appear upon the note, one of thirty dollars, and one of fifteen dollars. Both these indorsements were made by Brown, the payee and holder of the note, when the maker was not present; consequently, they, of themselves, cannot impose upon the maker the obligation of a new promise. Brown could not by his own act make a promise in his own favor which wonld bind Gear. We must look to the evidence, then, independently of these indorsements, and see whether Gear did, in fact, make these payments with the design that they should be in part satisfaction of this note. The testimony of Blakesly most clearly shows that the thirty dollars was not paid upon the note and that the indorsement by Brown of that amount upon the note, was entirely unauthorized by Gear. As to the payment of fifteen dollars.which was indorsed upon the note, the facts are these: Brown, residing in Chicago, drew his order upon Gear, in favor of Bostwick, for fifteen dollars. Bostwick presented this order to Gear in Galena, who said it was all right, but paid no money upon it, and Bostwick charged it in account to Gear. At this time there was an open and running account between Gear and Brown, arising out of their joint ownership of, or claim to, certain mineral lands. Gear was at that time acting as the agent of Brown as to his interest in those lands, endeavoring to get other parties off the lands, collecting mineral rent and the like, in the course of which Gear necessarily must have incurred expense and trouble, and probably received rents. This account has never, to this day, so far as we can learn from this record, been settled. It was a question, then, peculiarly appropriate for the jury to determine, whether Gear, when he told Bostwick the order was all right, designed that it should be applied as so much paid on the note, or designed that it should pass into their general account. It must be remembered that this new promise can only be implied where the party designedly makes a payment upon the note. There must be an actual, affirmative intention to make a payment on the note, before we can infer the promise. It is a general rule, no doubt, that where a debtor makes a payment without designating to which of several claims it shall apply, the creditor may apply it to which he pleases; but this could not authorize Brown to so apply it as to bind Gear by an implied new promise, without the actual intention of Gear to make such a promise. This was a matter in which Gear must have had an affirmative intention, before he could be bound. His volition was indispensable in order to bind him. If he had no thought or intention one way or the other, even then he could not be held to have made a new promise, for to do that he must have had an affirmative intention. This whole question was fairly submitted to the jury, and they found the issue in favor of the defendant, and we do not think that finding should be disturbed. Brown, upon his cross-examination, in order to bolster up these indorsements, says that he made them by Gear’s verbal order, but it appears that any such direction was made before the payments were made, and had no specific reference to these payments or these orders. This was really entitled to no consideration. The judgment must be affirmed. Judgment affirmed.