Fargo v. Jennings ( 1895 )

Fuller, J.

This action upon a promissory note was tried to the court without a jury. As a partial defense it was averred in the answer that the defendant paid plaintiffs $100 on the 4th day of October, 1890, to be applied upon said note, and it was admitted that the balance thereof was still due and unpaid. The facts as found by the court are, in substance, as follows: On the 4th day of October, 1890, defendant was indebted to plaintiffs something over $100 on account, and at the same time they were the owners and holders of his past-due, unsecured, promissory note for $175, bearing interest at 12 per cent per annum from December 17, 1886, no part of which had ever been paid. On the date first abve mentioned, the defendant, paid $100 upon his indebtedness to plaintiffs, without any intimation as to whether the same should be applied on the account or indorsed on the note. Plaintiff’s immediately credited the entire payment upon the overdue book account, and addressed and mailed a letter to the defendant notifying him of that fact. This letter appears not to have been received. As a conclusion of law upon the foregoing facts, the court found that the defendant was entitled to have the payment of $100 credited upon the note as of the date when paid, thus reducing the claim of plaintiffs from $308.06 to $199.85. From a judgment for the amount last above named in plaintiffs’ favor, and against the defendant, plaintiffs appeal.

• Where, for the' purpose of liquidation, money is paid by a debtor to one who owns and in the same capacity holds two or more past-due claims of similar character against him, without even expressing any desire or preference as to what obligation the same shall be applied, the creditor may apply the same to either, under subdivision 2 of section 3457 of the Compiled Laws. In the absence of any previous suggestion, under the statutory and common-law rule, defendant’s silence and failure to direct the application of the 1100, when paid, authorized plaintiffs to credit the same on the account, which was done, and his objection, for the first time, when suit is instituted to recover the amount of the note and interest, comes too late to be serviceable. Whiting v. Eichelberger, 16 Iowa, 422; Bank v. Roberts (N. D.) 49 N. W. 722; Munson v. Plummer (Iowa) 7 N. W. 95; Shortridge v. Pardee, 2 Mo. App. 363; 18 Am. & Eng. Enc. Law, 237, and numerous cases cited in support of the text. No one appears to have been injured by the application made under and authorized by the statute. Respondent paid $100 upon what he owed to appellants, and received credit for the full amount thereof. The judgment is reversed, and the case remanded for further proceedings not inconsistent with this opinion.