59 Tex. 649 | Tex. | 1883
Parol evidence is not admissible to contradict or vary the legal effect of a contract in writing. This is an ■elementary principle universally recognized and applied by the ■courts. It is also a well established principle that prior and contemporaneous verbal agreements are considered as merged in the written contract entered into between the parties. But the evidence introduced over the objection of the appellant, respecting the application of the payment made in cotton, and the charge given at the instance of the appellee upon the same, does not infringe either upon the one or the other of these principles. The right of the debtor, in making payments to his creditor, to direct how such payments shall be appropriated is undisputed.
In this case appellee claimed that the note sued on had been paid with cotton which he had delivered to Bray. That it wa-s the understanding between the parties at the time he and Billingsly purchased the wheel, gin-stand, etc., from Bray, that the debt was to be paid out of the toll cotton. Appellant claimed that the cotton delivered by appellee to Bray was properly applied to a debt that appellee then owed to the firm of E. & J. H. L. Bray. So
As is said in Hansen v. Rounsavell, 74 Ill., 238, a direction as' to the mode of application of a payment may be implied from circumstances. An agreement before payment, or even the expression of a wish on the- part of the debtor as to how a payment shall be applied, will amount to a direction to that effect.
In Terhune v. Colton, 12 N. J. Eq., 233, it is held that any acts-which manifest to the creditor the intent of the debtor to make a particular appropriation of a payment are sufficient so to appropriate it.
The effect of the evidence objected to was competent as tending to show to which of the two debts Crain intended to apply the payment, and also that Bray was aware of that intent. . This evidence did not in the remotest degree tend to contradict, vary or,change-the legal effect of the note or the written agreement. It had no re-, lation whatever to the obligatory force and binding effect of either, but had reference solely to the application of payments made by the debtor. As heretofore remarked, the appropriation may be established by circumstances as well as words. Mitchell v. Dall, 2 Har. & J. (Md.), 159; Howland v. Rusch, 7 Blackf. (Ind.), 236; Ilsley v. Jewett, 2 Metc. (Mass.), 168.
However, where a partial payment is made by a debtor to'a creditor who holds more than one claim against him, and there has been, no actual appropriation of the payment by the debtor at or before, the time'of payment, it is well settled that the creditor may apply it as he pleases. But if there are circumstances which would render the exercise of such discretion on the part- of the creditor unreasonable, and which would enable him to work an injustice to his debtor, then the rule is otherwise. Taylor v. Coleman, 20 Tex., 772; Arnold v. Johnson, 2 Ill., 196; Jones v. Williams, 39 Wis., 300; Whitaker v. Groover et al., 54 Ga., 174.
This understanding or agreement between the parties amounts to* nothing more than a direction in advance of how payments are to be applied. Thus considered, there is no error in the ruling of the* court admitting the evidence, or in the charge gixmn.at the instance, of the appellee.
It is claimed that the court erred in giving the following charge at the instance of appellee, to xvit: 2. “I charge you, that if Bray received and receipted for the cotton in his individual name, to be
The evidence clearly shows that the understanding was that the •claim might be paid in the toll cotton, and Crain had at different times delivered cotton to Bray, amounting in the aggregate to seventeen bales. Afterwards Bray gave Crain a receipt as follows:
“ Received of Jasper Crain seventeen bales of cotton, to be accounted for on settlement with him.
(Signed) “ J. H. L. Beat.
“ April 5, 1873.”
The vice in that charge is claimed to arise out of the fact that, at the time the receipt was given, Crain knew the note had been assigned to the bank. It does appear that upon that day Crain was informed of the assignment of the note, but whether it was before or after the receipt was given does not appear. But, considering the evidence, the charge tersely, clearly and most appropriately announces the law to be applied by the jury. Most certainly, if Bray received the cotton to be applied to his individual use, he could not afterwards apply it to a firm debt. Besides, having receipted for the cotton in his individual name, is certainly a circumstance tending, at least, to show that the appropriation was intended to be to his individual debt.
Appellant’s fourth assignment of errors is not supported by the record. The rule could not be expressed in plainer terms: “ if it be distinctly understood when the payment is made, to. what debt it shall be credited, immediately upon payment the credit becomes vested.” Considering this in connection with other portions of the charge, and in the light of the evidence, there would seem to be no possible chance for the jury to have misunderstood the meaning, import and application of the same to the case under consideration.
Appellant had asserted two years’ limitation to the offsets pleaded by appellee; whether or not this included the payment claimed to have been made with the cotton, is not very clear from the state of pleadings. But whether it did or not, is immaterial, for undoubtedly the appellant was not injured by the charge, nor could it have misled or confused the jury.
We have carefully examined the record, and conclude that the judgment is fully supported by the evidence, and that it ought to foe affirmed.
Affiemed.
[Opinion approved May 15, 1883.]
