Birkey v. McMakin ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— The note in suit fell due in October 1863, and according to the testimony of William Birkey: “ When the last note was due, Benjamin said, It is not necessary to renew it; I have it; give credit on my account. The account we have against him and hi’s brother. The words were ‘ against me and my family;’ he said charge it to his account.” This was evidence of an appropriation by Benjamin McMakin at that time, of the amount of this note to the payment or extinguishment of whatever he then owed the maker, and perhaps also of what he and his brother owed jointly; for the jury might well have inferred an acknowledgment of a liability on a joint account, for services rendered to each member of the firm severally. It ought to have gone to the jury as such; for at that time the bar of the statute had not run against the claim. We think, therefore, that the book entries proved by the oath of the defendant against Benjamin McMakin, and Captains J. & B. McMakin, and Captains McMakin, ought to have been received to show a set-off, which would be available, if the jury believed that the note in suit was the separate property of Benjamin. There can be no doubt that there was evidence of this. But the court below appear to have thought that it contradicted the endorsement — “ J. & B. McMakin.”

This endorsement was shown to have been in the handwriting of Benjamin McMakin, and as it appears to us so far from contradicting it rather confirmed the theory of the defence. It showed primá facie that J. & B. McMakin had assigned their interest or title in the note, and why not to one of the members of the firm as well as a stranger ? If then Benjamin McMakin was the owner of. the note when it fell due he had a perfect and unquestionable right to direct the appropriation of it to the payment of any debt due by him, or due by himself and brother to the maker. The fact that it remained unclaimed for more than four years after maturity and until after the death of Benjamin McMakin, and was found by his daughter in her father’s pocket-book with other papers, tended strongly to corroborate the defence.

Judgment reversed, and venire facias de novo awarded.