Nelson v. Davison

Mabshall, J. It is considered that there is an absence of any prejudicial error disclosed by the record in respect to the character of the questions submitted. The suggestion of appellant’s counsel on that branch of the case will be passed without further notice. Complaint is made because the court instructed the jury that it was incumbent on the party holding the affirmative as to an agreement having been made to apply the first payments on the note in suit to establish the same by a preponderance of evidence. The idea, advanced, is that it was respondent’s duty, in any event, to so apply the money because the particular note was the first which came due. Counsel is mistaken. So far as appears from the evidence no application of the money was made by Zimmerman at the time of' making the payments. The second note was due so there was no preference of one over the other. There is no room in the mere circumstance .of payments having been made, for an inference of fact or presumption of law or fact that the payor intended, to the knowledge of plaintiff, to make payment on the particular note. Under the circumstances he was left free to apply the payments as he saw fit. Counsel cite Yellow River Imp. Co. v. Arnold, 46 Wis. 214, 49 N. W. 971, to support his contention. The payments there were made on a running account and the court said that without directions from the payor such payments should be applied to discharge the indebtedness first incurred. No comment is necessary to show that the stated rule does not apply to this case. The indebtedness on the note in suit was incurred at the same time' as that on the note on which the payments were applied. The other authorities relied on by [570] counsel for appellant seem to bave as little application to the facts here as the one already referred to. In general, where money is paid by one person to another, the latter having several money demands against the former, and makes no specific application to any demand in preference to others, the payee may apply the money upon whichever of the demands he sees fit. Stone v. Talbot, 4 Wis. 442; Jones v. Williams, 39 Wis. 300; Northern Nat. Bank v. Lewis, 78 Wis. 475, 47 N. W. 834; Johnston v. Northwestern L. S. Ins. Co. 107 Wis. 337, 83 N. W. 641. Several other questions are suggested in appellant’s brief for consideration; but none of them seem to have sufficient merit to warrant specially treating them in this opinion. The questions submitted to the jury for decision sufficiently cover all the material issues raised by the pleadings to leave no room for prejudicial error in that matter. There was ample evidence to warrant submitting each of such questions. The law of the case, so far as given to the jury or requested to be given, they had the benefit of in coming to their conclusions. The verdict called for the judgment complained of. By the Court. — The judgment is affirmed.