It is сonceded that the defendant deposited with the plaintiffs the sum of one thousand dollars on the thirty-first day of May, 1881. The defendant claimed that he made a further deposit of two hundred dollars with the рlaintiffs on the twenty-second day of November, 1880. This is denied by the
There were but two questions submitted to the jury —First, whether the defendant deposited with the plaintiff the sum of two hundred dollars оn or about the twenty-second of November, 1880; and, second, did the plaintiffs, at the request and by the dirеction of the defendant, apply $177.75 of his deposit in payment of the balance due on his nоte ? If the two-hundred dollar deposit was made, the plaintiffs are indebted to defendant in the siim of $106.80. If it wаs not made, the defendant is indebted to plaintiffs in the sum of $93.20, and interest. The court among other instructions charged the jury as follows: “(7) I hand you three forms of verdict. If you find plaintiffs entitled to recover of defendant, you will determine the amount, including interest, and insert the same in the first form of verdict. If you find that plaintiffs are not entitled to recover, but that defendant is entitled to recover of plaintiffs оn his counter-claim, you will insert amount in second form of verdict. And if you find that plaintiffs are not entitled tо recover, and defendant is not entitled to recover anything on his counter-claim, then your vеrdict should be for the defendant, and you should use the third form of verdict, which contains no blank, — is for defеndant simply : ‘No. 1. We, the jury, find for the plaintiffs, and assess their recovery at $-.’ ‘No. 2. We, the jury, find for the defendant, and assess his recovery at$--.’ ‘No. 3. We, the jury, find for the defendant.’ ” The jury returned the third form of
Upon the question аs to the application of the money to the payment of the note the jury were instructed as follows : “If you find from the evidence that defendant, at the time he deposited the thousand dоllars, was owing plaintiffs a balance of $177.75 on the note mentioned, and requested or directed plaintiffs to apply said amount on said note and charge to his account; and, also, thаt plaintiffs did so apply said sum, and defendant has thereby received to his use a larger amount thаn he had deposited, which sum is still due and owing, — plaintiffs are entitled to recover such amount, with interеst at six per cent, from June 4,1883. But, if you find that plaintiffs have failed to establish such a state of facts, they are not entitled to recover; and your verdict should be for defendant.”
This instruction, and others оf like import, are claimed to be erroneous, because the court did not define what state of facts would amount to a request and direction to apply the money to the payment of the balance due on the note. We think that, under the facts of the case, the instructiоns should have been more explicit upon this question. It was wholly immaterial whether there was an express request or direction to so apply the money. It is true the plaintiffs, by their petition, averred a request, and the court, in the instructions, followed the petition. But a party is not required to рrove the unnecessary averments of a pleading. All that is required is proof sufficient to establish the cause of action or defense; and it was wholly immaterial whether the defendant expressly requested the application or not. If the defendant was indebted to the plaintiffs on the note, and plaintiffs applied one debt in liquidation of the other, the defendant has no right to сomplain and repudiate the application of the money because