Killorin v. Bacon , 57 Ga. 497 ( 1876 )

Warner, Chief Justice.

It appears from the record and bill of exceptions in this case, that Bacon sued the defendants in a justice’s court, on a draft for $82 50, drawn by Killorin and accepted by Hogg. The justice gave judgment for the plaintiff for the amount of the draft, and the defendants appealed to the superior court. On the appeal trial the jury, under the charge of the court, found a verdict for the plaintiff. A motion was made for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendants excepted.

It appears from the evidence in the record, that Bacon held a note on Killorin for $400 00, of older date than the draft; that one day the parties met in the street, when Killorin handed Bacon an order for $100 00, and told him, as he testified at the trial, to credit it on the draft now sued on, which Bacon did not do, but credited it on the $400 00 note. Bacon also testified at the trial, that when Killorin handed him the order in the street, that he said he had an order for $100 of Collins, “ which I will give you on my note if you will take it, and will pay the balance along.” Witness took the order, credited it on the note, and collected it. Killorin told him to credit the order on the note.

The court charged the jury, amongst other things: “That if they were unable to reconcile the conflicting statements of the plaintiff and Killorin, and were unable to make up their minds which was correct in his statement, that they must find for the plaintiff; that if the $400 00 note was the oldest debt due to Bacon from Killorin, the law will direct the payment of the $100 00 order of Collins to be credited on that note, and they must find for the plaintiff.”

1. In view of the evidence in the record, this charge of the court was error. The charge of the court assumed the law to be, that if the evidence of the two witnesses sworn on the trial, was so conflicting that they were unable to make up their minds which had made the correct statement in relation to the main question in controversy between them, that they must find a verdict for the plaintiff. We do not so understand the law as applicable to the evidence in this case. The law devolved the duty on the jury to have reconciled the conflicting evidence of the two witnesses, if possible, without imputing perjury or bad motives to either of them, but if their testimony was irreconcilable, then they must determine, from all the circumstances connected with the transaction about which they testified, who was entitled to the most credit, and have found their verdict accordingly, and so the court should have charged the jury. The charge of the court relieved the jury from the performance of a duty which the law devolved upon them.

2. The court also erred in charging the jury, “that if the $400 00 note was the oldest debt due to Bacon from Killorin, the law will direct the payment of the $100 00 order of Collins to be credited on that note, and they must find for the plaintiff.” By the 2869th section of the Code, where a payment is made by a debtor to a creditor holding! several demands against him, the debtor has the right to'direct the claim to which it shall be appropriated. If he fails :t'o db so, the creditor has the right, at his election, to 'appropriate it. If neither exercises this privilege, the law will direct t'hé'application in such manner as is reasonable and equitable "both as to parties and third persons. As a general rule, the oldest lien and the oldest item in an account will be first'-pa’id, the presumption of law being that such would be the fair" intention of the parties. Thus it will be perceived that the law did not direct, as the court charged, that the Collins order should be credited on the $400 00 note, and therefore the jury must find for the plaintiff. The law directed the application of the payment of the order (upon the hypothesis that neither party had directed its appropriation) in such, manner as the jury, under the facts of the case, might have considered reasonable and equitable both as to the parties, Bacon and Killorin, and Hogg, the acceptor of the draft, in view of the general rule of law applicable thereto.

Let the judgment of the court below be reversed.'