12 Ill. 159 | Ill. | 1850
We think the Court erred in not allowing the debtor credit, for the amount claimed to have been paid on the note. The amount in controversy was received by the creditor, with the written directions of the debtor to apply it on the note. It was, therefore, accepted as a payment on the note. It was, jpro tanto, a discharge of that particular indebtedness. It was the clear right of the debtor so to appropriate the money. He expressly exercised the right, and the creditor, in accepting the money, received it in part satisfaction of the note. The instant it was received, the. note, to that extent, was paid, whether the credit was ever endorsed thereon or not. "The creditor was not at liberty to disregard the appropriation made by the debtor, and apply the payment on another debt. The application of the payment could not he changed, without the consent of the debtor. Perhaps the parties might, by mutual consent, have transferred the credit to another demand, and, in that way, have revived the indebtedness originally discharged. But there is no evidence in the case to show, that the debtor ever assented to the payment being applied on the account the creditor held against Mm. The payment of the judgment recovered on the account, on which the ten dollars may have been credited, was no waiver by the debtor of his original rights, and no ratification of the ■change in the credit by the creditor. If he had, before the judgment was rendered, voluntarily paid the account, with knowledge that the payment was credited thereon instead of on the note, there would be more propriety in holding that he had assented to a transfer of the credit, and in not permitting him afterwards to insist on the benefit of the payment on the note. But this is a very different case. The payment of the judgment was compulsory. The debtor lost none of his defences to the note by paying the judgment. The creditor cannot complain, if he loses the benefit of the payment in question. It will be the result of his own wrongful misapplication of the appropriation.
The judgment of the Circuit Court will be reversed, with costs, and the cause remanded for further proceedings.
Judgment reversed.
