Starrett v. Barber , 20 Me. 457 ( 1841 )

The opinion of the Court was by

Weston C. J.

The counsel for the defendants waives his objection, taken at the trial, of a want of interest in the nominal plaintiff. If the sureties consented, that the note might be passed to any one, who would advance the money, which the jury have found, it was available against them, although not taken by the payee, named in the instrument.

The property put into the hands of the plaintiff, by the principal debtor as collateral security, was received by him under an implied obligation to account for the proceeds. Whatever expense was necessarily incurred by him in asserting his title, or in rendering it available, would be a fair charge upon the property. Whatever he realized and no more, if he conducted faithfully, he was bound to apply to the payment of what was duo to him from the defendants.

It is said that the release given to Barber, extinguished any further claim, on the part of the plaintiff. The controversy in relation to which the release was executed, was in reference to the title of the plaintiff to the logs, which formed the principal part of his collateral security. It discharged Barber from the warranty of title, implied in his bill of sale. The utmost extent to which it could be carried is, that it should be the same thing to Barber, whether the title under him was sustained or not; and that he would account with him for the logs, whatever might be the termination of that suit. This would remove any interest which Barber had in the result, which was the object of the release. And it ought not to be construed to extend further.

A question is raised as to the right of appropriation of the money received. This belongs to the debtor. But if he makes no appropriation, it will generally be in the power of the creditor to determine to what debt a payment shall be applied. Simson v. Ingraham, 2 Barn. & Cress. 65; Hilton v. Burley, 2 N. H. R. 193. In Harker v. Conrad, 12 Serg. & Rawle, 301, the same general doctrine is recognized. But in the last case it was held, that the right of appropriation by the creditor should be exercised within a reasonable time after payment, and by the performance of some act, which indicates an intention to appropriate. The plaintiff did not obtain execution on his judgment in his suit for the logs until July term, 1837. It was returnable at the December term following. When the money was collected does not appear. Assuming that it was realized on the return day of the original execution, an action was instituted on the note now in suit, in somewhat less than thee months afterwards. This may be regarded as an election to apply the payment to the extinguishment of the other note, and a claim to recover what was unpaid on the note in suit. The debtor had made no appropriation. The election of the defendant to claim this as a subsisting note, not wholly paid, was virtually an appropriation of the moneys received, as far as necessary to the payment of the other. The suit was a sufficient indication of his intention, which we think was manifested within a reasonable time; especially as the delay occasioned no injury or prejudice to the creditor. We sustain the opinion of the presiding Judge, as in accord-dance both with the law and justice of the case.

Exceptions overruled.