Bell v. Davidson

WASHINGTON, Circuit Justice, (charging jury.) This is a question of account, and the jury will not expect assistance from the court; they will examine the accounts, and form an opinion from them. There are two or three questions on which the opinion of the court is required. First, as to credits claimed by the defendant, taken from the accounts of the plaintiffs, and the debits in those accounts. The principle of law is, that if the defendant is not prepared to prove credits, but relies for their proof on the plaintiff’s account, the plaintiff can call on him to admit, prima facie, the debits; but it is competent to the defendant to show, by evidence, that the debits were not properly made. This applies in every case, in which a defendant makes use of credits in the plaintiff’s account. The plaintiffs in this [102] case might have inserted money counts in their declaration; and if the defendant had availed himself of the account of the plaintiffs, the plaintiffs could say, you have admitted the debits, prima facie, and you must disprove them. This action is brought on bills of exchange, and the plaintiffs cannot recover on the debits in their account, and must recover on the bills. But if the defendant avail himself of the credits, the plaintiffs may bring in the debits of the account, the defendant having used the account to show debits. Another question is, admitting that the debits are made out, can the defendant avail himself of them against the bills of exchange? It is a principle of law, that payments may be applied to any account, unless special directions are given for their application when they are made; and if, when the credits were given, there was an account between the parties other than the bills, they may be applied to that account. With respect to the £2000 and the £790, the jury must determine from the accounts. With respect to the two bills, for £1000 each, there is much difficulty as to facts, but none as to the principle of law; that if a bill is directed to be charged to a particular account, other than that of the drawer, and is paid, it is not to be charged to the drawer. But the jury have not all the evidence which might have been given, to show the actual state of the transaction, such, particularly, as the letters of the defendant to the plaintiffs. No evidence has been given, to show that the defendant was the agent of Lewis R. Brown to draw bills for him, and Brown may have been a principal in the transaction. The court will say, that if the bills were drawn, and Brown’s name used only as the agent of the defendant, the general principle of law will not apply. Verdict for $1,615.85.