Franklin Bank v. Cooper , 36 Me. 221 ( 1853 )

Howard, J. —

On January 19, 1849, the plaintiffs received the proceeds of the bark Keoka, to be appropriated according to the terms of their written agreement with C. & G. W. Stevens, dated January 11, 1849. There was a provision in the agreement, that after certain specified payments were made, the remainder was to be applied “ on demands the Franklin Bank have against W. & H. Stevens.” The bank then had two drafts on W. & H. Stevens, and by them accepted, not then due, and a note of a prior date, signed by them, payable to their own order on demand, and by them indorsed ; also a note over due, on which they were indorsers waiving demand and notice, together with the three notes now in suit.

After the maturity of the drafts, the plaintiffs sued W. & H. Stevens on all of the notes and drafts, in one action, and they filed in set-off, generally, the amount of the remainder thus received by the plaintiffs for their benefit, which was allowed by the jury, in set-off, generally, and judgment was rendered for the plaintiffs for the residue.

The testator was surety on the three notes in suit, but had no connection with any of the other notes mentioned, or with the drafts. The defendant insists, that the remainder of the proceeds of the bark should be applied, exclusively toward the payment of the notes in suit.

The general doctrine of the rights of debtors and creditors, respectively, to appropriate payments, does not appear to be involved in this case. For both debtors and creditors, in the former case, (Bank v. W. & H. Stevens,) having neglected previously to apply the payment, at the trial the debtors claimed to have it allowed against all of the demands in gross, and it was so appropriated, by consent of the creditors, or by operation of law.

The plaintiffs and the principal had a right to apply the payment to any or to all of the demands, as they preferred, and the defendant, as surety, cannot change their application. He does not appear to have had any legal connection with the fund from which the payment was made, and he has no right to complain of the appropriation.

The application of the payment has, in fact, been made in accordance with the original agreement of the plaintiffs, and the intention of the parties, in interest. And it may fairly be deduced from the doctrines of the civil and the common law, on the imputation or appropriation of payments, as a just conclusion in this case, that as the plaintiffs blended their demands in one suit, forming but a single claim against W. & H. Stevens, and as the general payment was set off against that claim, all the demands were satisfied ratably, and that the notes now in suit were paid in that proportion. Domat’s Civil Law, by Strahan, B. 4, T. 1, § 4, Rule 7 ; 1 Poth. Obl., by Evans, Part 3, c. 1, Art. 7, § 532, Rule 5, n. a; Devaynes v. Noble, 1 Meriv. 605-607 ; Perris v. Roberts, 1 Vernon, 34; Shaw v. Picton, 4 Barn. & Cress. 715 ; Favenc v. Bennett, 11 East, 42; Pattison v. Hull, 9 Cowen, 762-776, n. b; Blackstone Bank v. Hill, 10 Pick. 129; Commercial Bank v. Cunningham, 24 Pick. 276.

The plaintiffs will have judgment upon the notes declared on, deducting the accounts paid, in the mode stated.

Shepley, C. J., and Tenney and Wells, J. J., concurred.