Briggs v. Williams

2 Vt. 283 | Vt. | 1829

Lead Opinion

Turner, J.

delivered the opinion of the Court. The only question raised in this case is, with regard to the application of the money received by E. Warren, Brothers & Co. — From a thorough examination of the cases cited by the parties, and from a number of recent decisions, the principles which govern this case seem to be well settled. The payer, at the time of payment, has the right to direct the application, and upon his neglect, the payee has a right to make his election, and is not bound to make it at the time of receiving the money, but may at any reasonable time after. And if neither party elect, the law will make the application, which requires that the debts which have the most precarious security should be first extinguished. And the Court are bound to carry into effect the object of the law, that is, so to' apply the payment that the creditor may obtain satisfaction for his debt. The application of these principles must be plain and easy.

The defendants being indebted to E. Warren, Brothers & Co. in a large sum, executed to them several notes, all on demand, of equal date, and payable in cash. And having afterwards assigned to them and others, the notes of Griffith and Blachmer, mentioned in the receipt, a certain portion of which, when paid, was to be applied on the Warrens’ demands ; and, having then neglected to make a special application, thereby lost the .right, being a constructive payment sufficient to give the creditor the right upon the neglect of the debtor. The receipt also expresses a contract by which both parties were bound, and an application of the payment by the payees to any particular note was in pursuance of it, so long as it went to the extinguishment of the general debt. The payee’s endorsement of this note to the plaintiff was notice to the defendants that the application had been made on the other notes. If we were to consider that neither of the parties had directed the application of the money, most assuredly the Court would apply it on the notes retained by the Warrens, and not on that over which they had no controul.

Ailcin and Bennett, for plaintiff. Sargeant, for defendant.

Judgment affirmed.

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Dissenting Opinion

Hutchinson, J.

dissentients. I do not know as there is any importance in this decision, beyond the bill of cost, as applied to these parties ; but the principle is important; and I am unable to view it as my brethren do. I agree with them in the principle, that,if the person paying money neglects to apply it to any particu-lor demand, the person receiving has a right to apply it to which demand he pleases ; and, had the plaintiff made the application before suit, in the present case, the defendants -could not complain. But, it does appear to me, that, as the payment was received by the plaintiff and applied nowhere, and the notes sued, and the defendants obliged to come to court, and make de-fence , for the sole purpose of compelling the application somewhere, his right of election was restored ; and, when he had pleaded this payment in one suit, the creditor could not defeat that plea, by applying the money .in payment of a note comprised in another suit. 7