26 Mo. App. 634 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This action is brought to recover the penalty of a bond executed by the defendants to the plaintiffs, in the penal sum of two thousand dollars, to secure the performance by the defendant, Piel, of a contract between him and the plaintiffs, whereby they agreed to sell -him as much Glencoe black lime, of their manufacture, as he .should require during the year succeeding the date of the bond, at a stipulated price per bushel, provided they should have the same on hand; and whereby he agreed to make payments for each month’s purchases, at stated, periods in such month. The petition alleges that he did not make payments as required by the contract, but that a sum in excess of the penalty of the bond is
I. A jury was called, and, after some of the evidence had been heard, the court, perceiving that the decision of the facts involved the taking and stating of a long account, of its own motion, withdrew the cause from the jury and referred it to a member of the bar to try all the issues. Upon this ruling the defendant took a bill of exceptions. There was no error in this ruling. Rev. Stat., sect. 3606.
II. The referee took a large mass of testimony, from which it ajjpeared that, during the year preceding the date of the present contract between the plaintiffs and Piel, a prior contract subsisted between the plaintiff, Goetz, individually, and the defendant, Piel, for supplying the defendant, Piel, with the same Glencoe black lime then manufactured by Goetz alone ; that, subsequently, and while this contract was pending, namely, in February, 1881, a partnership was formed between the plaintiffs, Goetz and Cobb, and that this partnership continued the same business, and, during the remainder of the year embraced in that contract, continued to execute it by supplying to the defendant, Piel, the Glencoe black lime as therein stipulated; that Piel knew that the contract, although made with Goetz, individually, was being executed by Goetz and Cobb in partnership; that Goetz and Cobb also furnished to Piel, between the date of the formation of their partnership and December 28,1881, the date of the termination of that contract and of the commencement of the present contract, various other articles, such as sand, hair, cement, and plaster ; so that there was due from Piel to Goetz and Cobb, at the date of the termination of the old contract and of the commencement of the present contract for the black
The referee finds that no specific applications of any ■of these payments, made by Piel to Goetz and Cobb, was directed by Piel, or made by Goetz and Cobb, He accordingly finds, as. a conclusion of law, that the payment should be applied to the successive extinguishment of the oldest items of indebtedness on the general account of Goetz and Cobb against Piel; and, stating the account on this basis, in his original report he recommended a judgment in favor- of the plaintiffs, for the penalty of the bond sued on, with an award of execution in the sum of $1,774.46. Both parties filed exceptions to this report. The plaintiffs were dissatisfied with it, because it did not give them all they asked in their petition, and the defendants were dissatisfied with it because it gave the plaintiffs anything. The plaintiffs’ exceptions were two, and the defendants eighteen, in number. The court overruled all these ex- •
One of these exceptions was, that certain of the payments show on their face that they were not intended to apply to the black lime account of 1882, and that the others show on their face that they were not intended to apply to that account exclusively. It is true that some of these payments, amounting to fifteen hundred and fifty dollars, appear to have been in the form of checks or notes, payable to Goetz, individually; though, as already stated, they were endorsed by Goetz and Cobb, and went into their partnership account. A number of other vouchers show payments made simply “on account,” without any special designation as to what account. We mention these facts to show the difficulty of upholding the referee’s second report. Certainly the conclusion is cogent, that checks drawn in favor of Goetz, individually, were intended to be applied upon the account which Piel had under his individual contract with Goetz, or else upon his current personal account with Goetz, under the white lime contract, and, in the absence of any other specific direction, we do not see the propriety of applying such checks in liquidation of the black lime account, which subsisted between Piel and the partnership firm of Goetz and Cobb. We must, however, remind the parties, as we are obliged to do in nearly every case of this kind which comes before us, that it is an action at law, and that we do not sit as a jury, or as a board of referees in such cases. Questions relating to the preponderance of the evidence, are, in such cases, properly addressed to the judgment of the trial court, on exceptions to the referee’s report, but with such questions we have nothing to do. The referee’s findings of fact, so far as they become material, are, in the view which we take of the law, conclusive upon us,, although based upon conflicting evidence, and although, possibly, against the weight of the evidence. The exception of the plaintiffs, just stated, becomes immaterial in the view which we take of the law.
aThe court should have made such application, first, upon the note on which the defendant was not a surety. This should have been done under the rule laid down by Bliss, J., in the case of McCune v. Belt (45 Mo. 174), that the application should first be made upon the debt first maturing. And this should have been done, also, under that rule, which is more satisfactory to us, and better supported by reason and authority, that, where the money has been voluntarily paid, by the debtor, and no particular appropriation made by him, ■and no particular application made by the creditor, the •court should first make the application upon the debt whose security is most precarious. Field v. Holland, 6 Cranch, 8, 29, opinion by Marshal, C. J., 1 Am Lead. Cas. 292, 296, and cases cited.”
We are of opinion that this conclusion is the better conclusion, and that it is supported by the greater weight of judicial authority. Where the debtor, in making payment, does not direct the. application, the presumption is, that he is willing to allow the creditor to ■do' as he pleases, and, hence, the creditor may apply the payment to extinguish any preexisting. debt. If the creditor makes no other specific application of the credits than by entering them as- credits in his general account with the debtor, it is a reasonable presumption that he is willing to allow them to be applied in liquidation of the oldest items on the debit side, of the account; and, as a general rule, the law will give effect to this presumption, But, where this rule is departed from, in special
In the opinion ajid order re-committing the case to' the referee, the learned judge cited three decisions of our supreme court in support of the view that, in the case at bar, the payments should be applied so as to exonerate the defendant’s sureties. Eddy v. Sturgeon, 15 Mo. 199; Draffen v. Boonville, 8 Mo. 395; The State to use v. Smith, 26 Mo. 226. In the first of these cases (Eddy v. Sturgeon), the court based its decisions upon the terms of a written contract of guaranty, and, in concluding its opinion, said : “ The construction we give to-the guaranty in this case enables us to determine it, without noticing the numerous authorities in relation to. the proper application of money, on payments made, without any directions how to apply it at the time.” 15 Mo. 204. It thus appears that this decision does-not control the decision of the question before us. The other two cases (Draffen v. Boonville, and The State to use v. Smith), hold that, in actions on the bond of an accounting officer, who serves during successive terms,, with successive sets of sureties, in order to produce equality among the different sets of sureties, the collections made by the officer during each year will be applied to extinguish the liabilities of such year. This is, perhaps, a good application of the maxim, cited by the learned judge of the trial court, that equality among sureties is equity. Our supreme court, in declaring this-rule, has confessedly made it an exception to the general rule governing the application of payments. The pinciple which underlies it does not seem to apply fco the present case; for here there is no question of equality among sureties, and there can be no question of equality among three parties, consisting of a creditor, a debtor, and a surety of a debtor. The surety makes himself answerable for the defaults of his prin
III. The defendants contend that, as the contract of 1880, upon which there was a balance due from Piel of one thousand and eighty-two dollars, as already stated, was a contract between him and Goetz, alone, .and not between him and the partnership firm of Goetz :and Cobb, the referee erred in holding that the general payments, made by Piel to Goetz and Cobb, should be applied first in extinguishment of this balance. We regard this as raising a question of fact, merely, which is concluded by the finding of the referee. Although the contract was with Goetz, alone, it was, subsequently to the formation of the partnership in February, 1880, executed by Goetz and Cobb, jointly, and, as there is evidence tending to show, with the knowledge of Piel. This authorized the referee to find that the indebtedness represented by the balance of one thousand and eighty-two dollars, was an indebtedness from Piel to the partnership firm of Goetz and Cobb.
IY. The contention of the plaintiffs, that they are ■entitled to a judgment for the entire penalty of the bond, is also regarded by the court here as depending upon conclusions of fact, which are put at an end by the ■decision of the referee, unless the amount of his finding
Y. . The referee has, however, in his finding of $151.03 in favor of the plaintiffs, omitted to compute interest from the date of the last payments, but has coihputed it from the commencement of the suit only. We are of opinion that the plaintiffs were entitled to have interest computed from the days on which the various payments became due, under the terms of the bond sued on. The State ex rel. v. Friedreich, 10 Mo. App. 591. It is true that the petition in this case does not, in terms, demand interest, as in the case just cited, but we regard this as immaterial, since the petition stated facts, which, if true, show a larger amount due to the plaintiffs than the penalty of the bond, and prayed judgment for the whole penalty thereof.
The judgment of the circuit court will be reversed,, and the cause remanded, with directions to enter judgment in conformity with the first report of the referee, after allowing the plaintiffs interest from the date of the accrual of the respective items which should have been paid, according to the terms of the bond, but were not’ paid. It is suggested that it will be proper, and perhaps, necessary, for this purpose, to refer the case again tO' the referee. The plaintiffs appellants will recover the-costs of this’ appeal.