It аppears from the foregoing statement of facts that the plaintiffs - had actual knowledge of the relation which existed between the defendant and White, the agent, in making the payments. They had exacted from the defendant the guaranty of particular sums as thе work progressed. When, therefore, moneys from the defendant were received, thеy were bound to apply such payments upon the contract which had been guaranteed by the defendant. In each ease the payment'was made by the check оf the defendant payable to White, and the plaintiffs, understanding the relation which existed bеtween these parties, were bound also to take notice of the fact that it was a payment made by the defendant upon his contract of guaranty. Tt-is doubtless true that the plaintiffs would have had the right to apply the money upon any indebtedness, as-betweеn them and Mrs. or Mr. White, in the absence of any knowledge or. notice by them that the money wаs to be otherwise Applied, even- though it Was received from a guarantor. Such was thе rule
It is claimed, however, that the testimony in this cаse operates to remove it from the application of such rule. It was testified to by Scherbner, one of the plaintiffs, that after the execution of the guaranty by the defendant the latter stated to him that he was not feeling very well and that the plaintiffs should have all their dealings with Hr. White; that what he would do would be satisfactory to the defendant, and not tо bother him about it, and that Hr. White told him at the time of making the payment to apply it upon the extra work. Assuming, as we must, that, this statement is true, I do not think it changes the résult. It certainly did not operate to modify the contract of guaranty, nor was it so intended. It did not confer authority upon the plaintiffs to appropriate the moneys of the defendant to other purрoses than that covered by the contract of guaranty. The plaintiffs had actual knоwledge that the moneys paid by White, although in the form of a check, were the moneys сontributed by the defendant in discharge, of the obligation which the plaintiffs had exacted bеfore entering upon the performance of the contract. All payments that had been made by- the defendant were made by check in this form. Consequently, tlie plaintiffs were at all times advised as to the source of the moneys.
The theory upon which a pаrty receiving payment may make application of the same as he determines, in the absence of a direction, rests upon the basis that the debtor making the paymеnt is the owner of the money. Such is the doctrine announced in the cases above referred to. The basis of the rule in the present instance fails, for White concededly wаs not the owner of the money at the time when he made the payment or at any othеr time. He was the mere agent of the defendant in making such payment, and such
The exceptions, therefore, should be overruled and judgment direсted for the defendant dismissing the complaint, with costs.
O’Brien, P. J., Patterson and McLaughlin, JJ., concurred-; ■Ingraham,'J., dissented.
Exceptions overruled and judgment ordered for defendant. dismissing complaint, with costs.