Watt & Co. v. Hoch ( 1855 )

The opinion of the Court was delivered by

Knox, J.

In Koons v. Miller, 3 W. & Ser. 271, it was held that the practice of merchants of Philadelphia to charge interest on their accounts, after six months, had existed so long, and was so uniform, that it formed part of the contract of sale, and that its existence was so notorious that courts of justice were bound to notice it as part of the law. There is no reason why the same rule should not be applied to sales of goods made by the merchants of Pittsburgh, as the custom is the same there as in Philadelphia, and equally notorious. The first assignment of error is therefore sustained.

The rule as to the appropriation of payments was not correctly stated. Where a debtor indebted on several accounts makes a payment, he may direct how it shall be applied, but if he makes no appropriation of it to any specific debt, the creditor then has the right of application, and if he credits it generally on an open account, the law will not afterwards apply it to the payment of a judgment, even although older than the account, and more particularly is this so where the creditor has security for the payment of the judgment, and none for that of the open account. In the absence of any agreement, understanding or direction to the contrary, the payment made in this case should have been applied first to extinguish the book account and the residue only to the judgment.

The objection to the depositions of Valentine Hoch is not sustained. It sufficiently appears that they were taken before competent authority.

The fifth and sixth assignments of error have no bills of exceptions upon which to found them.

Judgment reversed, and venire de novo awarded.