Fargo v. Buell

21 Iowa 292 | Iowa | 1866

Weight, J.—

1. ConpucauinS payments. Coman did not direct how or to which account his payments should be applied. Most of them were made through his agents or commission merchants in Chicago, where plaintiffs reside, an(^ reeejpj.8 ta]jeil 0f the following terms:

“ Received of E. P. Coman by Messrs. John Clough & Co.-to apply on account.

“FARGO & BILL.”

Plaintiff applied these payments, except $250, received in January, 1863, for which no receipt was given, as shown by the account rendered and testimony, to the account made after the dissolution, of to that against Coman alone. Upon this subject there is no room for controversy. It was the debtors’ right to have these payments applied on the indebtedness of the firm. He made no such appropriation or direction however, and under ftie law, plaintiffs could rightfully apply them as they did. There is nothing even to show that- plaintiffs had reason to believe that Coman intended to apply them otherwise. The two amounts were kept separate. Both were equally valid, and uncontroverted, and Coman was alike concerned in the discharge of each. Plaintiffs never agreed, directly or indirectly, to release defendant, nor to look to Coman alone for the payment of the old debt. Under such circumstances the law was with plaintiffs, and the court below should have so found. Upon this subject we refer to 2 Greenl. Ev., §§ 529-532 a, inclusive; Whiting v. Eichelberger et al., 16 Iowa, 422; Hansen v. Kirtly, 11 Id., 565. New trial ordered.

Reversed.