11 Vt. 466 | Vt. | 1839
The opinion of the court was delivered by
This is an action on book, and the plaintiff's claim is for $11, cash, which the defendant insists was paid to be applied on a note which he held against the plaintiff. The general rule that money, paid to be applied on a particular demand, cannot be made the ground of action, is too well established to be called in question, but this rule can only apply to those cases where the payment, in itself, operates, pro tanto, to extinguish so much of the demand upon which the money is paid, and not to cases where, by the agreement of parties, the money paid is kept on foot as a subsisting claim, but subject to a future appropriation. In the present case, the auditor reports, it is true, that the money was paid to apply on the notes, but that, on receiving the money, the defendant said he could not then apply it as the notes were not in his possession, and, by agreement, it was then charged on the one side and credited on the other, with a view to a future application, the parties then having an unsettled and subsisting account between them.
The effect of this would be to leave the notes in full force for the whole amount due on them without reference to the eleven dollars. The notes having been sued and judgment rendered on them for the full sum due, without the application having been made, there is no reason why the plaintiff should not recover in this action. The case comes within the principles of the case of Strong v. McConnell, 10 Vt. R. 231.
The objection is made, that the action on book cannot be maintained on a charge for money, but no good reason is
