78 Tenn. 147 | Tenn. | 1882
delivered the opinion of the court.
This is a suit brought on a promissory note, given by James McGill, defendant’s intestate, to David Mc-Gill, plaintiff’s intestate, in 1857, for $310.
The defense is payment, and a plea of set-off, based on the fact, as averred in the plea, that David Mc-Gill had taken charge of and sold bacon, lard and pork, the property of defendant’s intestate, and had not accounted for the proceeds.
The jury, under the charge of the court, have found a verdict for defendant, evidently on the plea of pay
The testimony in the case would sustain the finding of the jury under the plea of payment, if the •charge of the court gives the law correctly. A witness testifies that the plaintili’s intestate met defendant’s intestate in the road near his house, in or about November, 1861 (they being father and son), and said to him, I have been selling some meat of yours, and have a note of yours which is paid, and which you ought to have, or which ought to be given up. The witness further stated, that the father went to the house to get the note, but returned after a time, saying it was mislaid, and could not then be found, but that he would get it and hand it to him some other time. The son was a soldier at the time in the army at Bowling Green, Kentucky, to which he returned soon after. In February after, he came home sick, and died. The father died about a month later.
The matter of proof under the plea of set-off shows •a sale of meat in February, 1862, and cannot, therefore, be assumed to have been the transaction referred to by the previous witness.
The only error assigned in argument for reversal, is in the charge of his Honor, and his refusal to •charge as requested by plaintiff’s counsel.
His Honor said to the jury substantially in one portion of his charge, that if David McGill held a note of James, and the money of the latter went into
What was charged, and what was refused, make it clear that his Honor held that the receipt of money from sale of the meat of. the payor of the note, by the holder, unless the money was otherwise accounted for to the party, was as a matter of law, a payment of the note. In this we think he erred. It was clearly not paid by the payor to him for the purpose of satisfying the debt. If the payor of the note had not directed an appropriation of the money to the payment of the debt, the other party receiving as his agent could not be presumed to have so applied it,