Moore v. Kiff

Mr. Justice Paxson

delivered the opinion of the court, March 19th 1875.

We do not see the force of the first assignment of error. It amounts substantially to an allegation, that the court below erred , in submitting a question of fact to the jury. What other disposition the court could have made of it does not appear.

We think the learned judge erred in instructing the jury that the payment made by the defendants, must be applied to the principal of the debt in controversy, to the exclusion of the interest notes. He places this upon the ground, that the latter were barred by the statute, as will be seen from the following extract from his charge : “ No money or sums were ever applied by Moore to either debt, and as the interest notes are now barred by the statute, it seems to us, that these payments must be applied to the debt in controversy.” The error of this reasoning consists in the fact, that at the time of the agreement of November 28th 1849, the interest notes, referred to, were not barred. It is not pretended that any payments have been made since that date.

It does not appear that Moore ever applied the payments made prior to said agreement, or the price át which the land was resold, to either class of notes. Nor was any such application made by the defendants. It remains, therefore, for the law to apply them. Where money is paid generally upon a debt, the obvious rule is, to apply it first, to the interest, if any, in arrears, and then the ex-tinguishment of the principal. Is there any valid reason why such rule should not be applied in this case ? This transaction, as it stood originally, was a sale of a farm, with the stock, for the sum of $3150. Notes were to be given for this sum, with interest, to be secured by a judgment. When the parties came to close it up, for some reason, separate notes were given for the interest, and they were made payable in pork and sugar. By the subsequent agreement of November 28th 1849, Moore was to take the land back at $5.50 per acr , and this price, as well as former payments, was to be credited upon the original indebtedness. In the precise language of the agreement, it was to be admitted as payment of “said several notes.” What notes? The notes for the principal only ? There is not a word in the agreement to indicate this. The parties evidently contemplated the payment of the debt due Moore, not merely the principal of that debt. Nor is the fact that the interest notes were payable in pork and sugar material, unless there had been an offer to show payment in those particular commodities. The defendants had a right to pay in pork and sugar. An offer to do so would have been a sufficient answer to a demand for payment. But a failure to show either payment, or an offer of payment, in these articles, fixes the liability of the defendants to pay in money.

If the plaintiff in error desired the specific instruction referred to in the third assignment, he should have asked for it. No such point was submitted to the court. Under the view which we take of the case, he would have been entitled to its affirmance.

The fourth assignment of error is sustained. The plaintiff was entitled to recover the balance, if any, remaining unpaid of the original debt of $3150, with interest, after deducting any payment or proper credits. '

Judgment reversed and a venire facias de novo awarded.