Hollister v. Davis ( 1867 )

The opinion of the court was delivered, by

Thompson, J.

The suit upon the bond in this case, was to enforce the payment of an alleged debt due by Davis ; and because it was also signed by others as sureties, that would not prevent him from setting off against it any just claim due him from the plaintiff. He had a book account running through some two or three years, which after deducting from it the plaintiff’s account which he also kept, he introduced the balance due him as a set-off. There seems to have been no objection to the account as evidence, but only to its effect. The learned judge was of opinion that it was a good set-off,, and directed it to be allowed by the jury, inasmuch as there was no evidence that it had been appropriated by either of the parties on any other account or to any other claim. We see nothing in the testimony to show error in this; and the law undoubtedly is, that where parties make no appropriation of payments, the law will, and generally to the first, or oldest indebtedness. That was just what was done here. Neither the nature of the transaction, nor the manner in which the defendant kept his accounts, nor the examination by Yan Camp, and his report of the statement he had made of them, amounted to an appropriation of each year’s book account to each year’s rent; and certainly Davis’s reticence as to whether he assented to it or not, does not prove he did. Yan Camp and he were alone when the former communicated how he had cast up the accounts, and he made no reply. He was not Davis’s agent in doing it, but examined the books at the request of the plaintiff. This, therefore, made out no appropriation to interfere with the set-off offered. The court could not go outside of the case, in the absence'' of an appropriation to see whether or not there were other parties interested in the subject of the set-off. They could only deal with the case of the parties before them, and in doing it, we cannot discover any error that was made. We must therefore affirm the judgment.

Judgment affirmed.