Citation Numbers: 41 Me. 248
Judges: Appleton, Cutting, Mat, Rice, Tenney
Filed Date: 7/1/1856
Status: Precedential
Modified Date: 9/24/2021
In defence of this action, it is contended, that the consideration of the notes declared on has failed, and that they have been paid; and that the plaintiff cannot recover under the money count, because all claims under that are barred by the statute of limitations. It is conceded by the plaintiff’s counsel, if he can recover at all, it must be upon the notes in suit. They bear date February 14, 1839, and were witnessed when made. There is no evidence of any dealings or promise, express or implied, between the parties within six years preceding the date of the writ. It is clear, also, that the facts in the case show no failure of consideration, which takes away the plaintiff’s right to recover.
The only question is, whether the notes have been paid. The parties were, prior to the giving of the notes, partners in the business of running a stage. The co-partnership was dissolved at the time said notes were given, and they were given for the plaintiff’s interest in the company property; the plaintiff at the same time taking back a mortgage of said proper
The notes given to the plaintiff were four in number, of $500 each, and the last was payable in July, 1841.
Within the year 1839, the defendant, with the consent of the plaintiff, sold the mortgaged property for $4000, and took notes therefor, running to the plaintiff, the last of which fell due August 1, 1841. It appears that the plaintiff received these notes as so much in discharge of his claims against the defendant in conformity with the provisions of said mortgage; and they were all paid to the plaintiff as they fell due. It does not appear that the plaintiff had paid any thing towards the company liabilities when he received these notes; but after the dissolution of the co-partnership, he paid sundry such debts belonging to the defendant to pay.
On the 13th of January, 1841, the parties called on Stephen Stark, who had their papers, to state the condition of their matters, that they might make an adjustment. At this time said Stark drew up a memorandum, to the correctness of which the parties assented; from which it appeared that the amount of company debts which the plaintiff had then paid was $2195,75, and that the amount then due on notes in suit was stated to be $2229,67. The notes received for the mortgaged property and interest then amounted to $4209,19, of which the plaintiff had been paid $2180,78.
It appears from this statement of Mr. Stark, that no deduction was made from the amount of the notes now in suit, by reason of $400, which the plaintiff had indorsed on the first note, under date of January 10, 1840, as money collected on note against the Augusta and Anson Stage Company; but this
The question we are now called upon to determine, is whether by operation of law, or the acts or agreement of the parties, the moneys which the plaintiff received from the mortgaged property, have been or should be appropriated to the payment of the notes in suit or of the other claims. This is a question not free from difficulties. Not but that the law in regard to the appropriation of payments is well settled, so far as regards the rights of either or both parties in making such appropriations, and where the parties, or either of them, have not made any; but because there is a want of certainty as to the intention of the parties in the present case, as developed in their agreements and acts. Considering however, that the mortgaged property was originally first liable for partnership debts, and that the plaintiff’s liabilities for these debts are first mentioned in the mortgage, as secured, while the ultimate payment of the notes is only provided for, we think it is fairly to be inferred that the avails of that property, if disposed of by the plaintiff, or with his consent, for the purposes mentioned in the mortgage, were to be appropriated,
In view of all the facts, we are of opinion that the money received as the avails of the mortgaged property, excepting the §400, which has already been indorsed on the first note, should be applied first to the payment of the plaintiff’s claims for money paid, and the residue upon the notes in suit; each party allowing interest to the other, until such appropriation
Defendant is to be defaulted.