76 Iowa 246 | Iowa | 1888
The pivotal question in the case is, should the last payment be applied to the lots other than those described in the Stanley contract? If it should, the verdict and judgment are right. There is no real dispute or conflict in the evidence, and, indeed, the question is more one of law than of fact. The defendant did not direct- what application should be made of the payment. In such case it was the right of the plaintiff to make the application. In Whiting v. Eichelberger, 16 Iowa, 422, it was held that when moneys are paid by a debtor to a creditor holding several demands against him, he may direct the application of the same. If he fails to make. such direction, the creditor may make the application and, if he fails, the law will make a fair and just application.
The court instructed the jury that “ if neither party, directed the application of the payments, and there was no understanding as to where and how they should be applied, then the law would apply them, and the proper application would be to the contracts originally entered into by the defendants. The fact is undisputed that there was no evidence that the plaintiff made the application of payment at the time. .There is no showing of such application at any other time, excepting .the inference from the forfeiture of the contracts. The plaintiff is insisting on the strict right of forfeiture. It should be diligent to exercise its right. In the case of Iowa R. R. Land Co. v. Mickel, 41 Iowa, 402, a forfeiture of a contract in all respects like those in the case at bar was upheld. But the plaintiff in that case was prompt to exercise its right. In that case there were “previous transactions” between the parties, which plainly indicated that they intended, when they entered into the contract, to abide by it only upon the strictest compliance with its terms. In the case at bar the plaintiff demands its right to forfeit all of these contracts, and keep all of the money it has received upon them, — which is no inconsiderable sum, — and by this suit put the defendant out of possession. To authorize it to insist on a forfeiture it should have brought all these contracts into court, and showed by proper indorsements thereon that it had so applied this payment-at the time it was made as to leave at least some small balance due on all of them. It made no such showing. If it demands strict performance or forfeiture it should show that it was prompt to avail itself of the right to make the application of the payment, which it now demands shall be made. In our opinion the court would not have erred if it had charged the
Affirmed.