Hunt v. Brewer ( 1878 )

Libbev, J.

Prior to September 27, 1875, the defendants were copartners, and on that day they dissolved their copartnership. Prior to the dissolution the defendants had traded with the plaintiffs, and there was an admitted balance due the plaintiffs unless it had been paid. Subsequent to the dissolution, Brewer bad traded with plaintiffs and was indebted to them individually. On the 22nd of October, 1875, Brewer gave to the plaintiffs his personal note for $300 on ninety days, and took their receipt therefor, which did not specify for what it was received. The question of fact was presented to the jury whether there was an actual appropriation, by the parties, of the note on the joint account of defendants, or on the several account of Brewer. There was evidence both ways. In presenting the case to the jury, the judge instructed them upon this point as follows: “ There is only one piece of evidence to which I feel it my duty to call your attention bearing upon that point, and that is the receipt which was given at the time the note was delivered, which is before you and has been the subject of comment by counsel. With respect to that receipt, I deem it my duty to give you a specific instruction, and that is that the receipt for the note does not show, upon the face of it, whether the note was or was not given in discharge of the joint indebtedness of Brewer and Lothrop, or the individual indebtedness of Brewer alone. It shows from whom it was received, but not upon which of the two accounts it was to be applied. Upon the latter point it is silent and can have no legitimate bearing one way or the other.” To this instruction exception is taken. The exceptions do not show what instruction was given as to the legal rule of appropriation, in case no actual appropriation of the payment was made by the parties. In such case the law would appropriate the payment in discharge of the several debt of Brewer. We must assume that this rule was given.

From the statement in the exceptions, of the issue presented to the jury and the language used by the judge, we must assume that the portion of the charge excepted to related to the issue of fact upon which the jury was to pass, whether there was an actual appropriation by the parties of the three hundred dollar note in payment of the joint indebtedness, or the several indebtedness of Brewer. Upon this issue the instruction was correct, for the receipt is entirely silent as to what the note was received for, and hence contained no evidence upon the issue of actual appropriation.

Exceptions overruled.

WaltoN, BARROWS, Daneorth and Vergin', JJ., concurred.