Bopp v. Wittich

BOND, L The only question presented for review in this case is the correctness of the rulings of the court upon the finding of facts incorporated in its judgment. Land Co. v. Bretz, 125 Mo. loc. cit. 423, and cases cited. The rule as to the application of payments is thus announced by the Supreme Court, viz.: "In- the absence of any directions to the contrary, by the debtor who owes his creditor more than one valid and subsisting debt, the creditor has the right to apply any payment made ’to him by the debtor on either of the debts that he may choose.” Coney v. Laird, 153 Mo. loc. cit. 431, citing [134] 111 Mo. 264. In tbe exercise of tbis privilege it is, however, tbe duty of tbe creditor to apply payments made to bim to tbe satisfaction of claims against tbe debtor wbicb bave matured, ratber tban to those which bave not become due. Cloney v. Richardson, 34 Mo. 310. A creditor who has once made an application of payments, received without designation, can not afterwards change tbe same, without tbe consent of tbe debtor, simply to serve bis own interests. McCune v. Belt, 45 Mo. 181. Tbe theory wbicb underlies tbis rule is, that payments made without direction on tbe part of the debtor, shall be applied to tbe extinguishment of demands against bim in tbe manner in wbicb justice and equity would prescribe and, therefore, according to bis presumed intention. As .the debtor would bave tbe clear right, in tbe first instance, to apply payments made to bis creditor to mature or immature obligations, it follows that if tbe special facts and circumstances of tbe case show that a payment, made without instruction as to its application, has, nevertheless, been applied by tbe creditor to an indebtedness not yet due and that tbis fact has been communicated to tbe debtor and acquiesced in by bim, no new application can be made by tbe creditor without tbe consent of tbe debtor. Tbe special findings of tbe trial judge, in tbis ease, show that positive'written information was given to tbe defendants of tbe application of tbe payments previously made by them to tbe plaintiff to tbe full extinguishment of tbe contract price for building tbe dwelling house, and that tbis notice was given to them while they were in possession and use of the dwelling bouse as a completed structure. They manifested no objection to tbis application of payments, made by tbe plaintiff. At tbe time they received tbis written notice, all tbe payments for tbe construction of tbe bouse, according to tbe provisions of tbe contract therefor, bad become due, since tbe bouse bad then been [135] turned over to them as completed and ready for occupancy and tbey bad actually begun to occupy tbe same. It follows, then, whether plaintiff’s previous application of one of the payments (April 11, 1899, $300), was by mistake made to an installment of the contract price of the house not then due, because the plastering was not then completed, still at the time of his written notice to defendants, the plastering in question and the house itself had been completely finished and he, therefore, was entitled (at the date of his notice to the defendants), to make such application as he chose of the payments theretofore made'by them. The result is, that whether it be taken from the findings of the trial court that the plaintiff applied the said $300 payment on the house account before the installment to which it was supposed to be apportionable had become due, or whether his subsequent written notice to the defendants amounted to an application of all payments at the date of such notice; in either event he could not thereafter make a new application of any portion of such payments without the consent of the defendants, whose conduct afforded evidence of their assent and acquiescence in the mode previously adopted by him. The judgment is affirmed. All concur.