Quigley Bros. v. Duffey ( 1879 )

Adams, J.

i. nrroxrcATpvomibsonf' void.' The defendant insists that the referee was correct in his conclusions that the note is wholly void, a part of the consideration being illegal, and that the legal items of the account having accrued more than five years before the commencement of the action, the action thereon was barred. The plaintiffs insist that the note is void only to the extent of the illegal consideration. They further insist that if it is wholly void still a recovery should be allowed upon the legal items of the account intended to be covered by the note, notwithstanding the lapse of five years between the last item and the commencement of the action, because they may be taken with the items of account accruing within five years as constituting one continuous account. To this the defendant replies that at the time the note was given the account for which it was given must be regarded as having been stated, and so that part of the account was severed from the part which followed.

That such a note would be wholly void was held in Taylor & Co. v. Picket et al., ante, p. 476.

The question raised in regard to the severance of the account need not be determined. The payments made are sufficient to extinguish the legal items of the account intended to bo covered by the note, provided the payments are applicable thereto. The defendant insists that they are not. In our opinion they are.

2. account: voffiote*by payments. The only testimony in regard to the matter was that of one of the plaintiffs. lie testified that he did not give the defendant cre(i^ for payments upon the note, because they did not amount to enough to take it up; that he proposed to give the defendant credit on the book account, and the defendant assented. Now if the note was void, as defendant contends, the whole indebtedness so far as it was legal was due upon account. It stood precisely as if no note had been given. The proposition made to defendant to give him credit on the book account must, we think, in the absence of evidence to the contrary, be understood as meaning to give him a credit in the plaintiff’s book of account, to be applied under the law governing the application of payments where there is no direction making the payments applicable to specific items. If we had merely the book before us showing no note given, but simply the items charged to defendant upon one side and the payments made by him credited upon the other, it would appear of course that the oldest legal items must be considered as paid. But the case is not different if the note is wholly void, and if there is no evidence that the credit for payments was not given as directed or assented to by defendant. In such case the application must be determined from what appears upon the face of the book.

This being our view, it follows that the report of the referee was properly set aside.

Affirmed.