Miller v. Leflore

32 Miss. 634 | Miss. | 1856

Fisher, J.,

delivered the opinion of the court.

This is a writ of error to a judgment of the Circuit Court of Carroll county.

The facts are as follows: — the defendant, Greenwood Leflore, on the 12th day of October, 1839, purchased of the plaintiff, as administrator of the estate of Stephen D. Miller, deceased, property to the amount of $4000, on a credit of one, two, three and four years, for which he gave his four notes, for the sum of $1000 each, payable as above stated. The note first falling due is the one upon which this suit was brought. Sundry payments appear from time to time to have been made; part of which being applied to the note sued on, it was considered as paid, and given up to the defendants ; the others are still in the hands of the plaintiff, and whether paid or not, must depend upon the manner in which the payments are applied. The defendants pleaded payment, and the court instructed the jury, that, under the agreed state of facts, the note was paid; and the jury found a verdict accordingly.

"Waiving an objection which might, perhaps, be urged against the instruction, that the court charged upon the weight of the testimony, it is certainly in other respects correct. The fact that both parties treated the note as paid, and that it was accordingly delivered up to the defendant, must be treated as conclusive evidence of payment.

But aside from the agreement which must be presumed from the conduct of the parties, we are of opinion that the question is equally clear under the law which must govern the case. Interest, it appears, had accrued upon the several notes, before all the payments were made; and the question presented by the record is, whether, when a payment was made, it should have been applied first to the interest which had accrued upon all the notes, or whether it should have been applied first to the interest accrued on the note first falling due, and the balance of such payment to the principal of said note, and so on, in the order in which the notes were payable. The four notes, although originating in the same transaction, must be treated as four several and distinct contracts, for otherwise no suit could be maintained on any one of the notes until they all became due. Besides, they could have been indorsed to different persons, who could have maintained several actions thereon; whereas, if all the notes constituted but one contract, one of the notes could not, in a legal sense, be indorsed so as to invest the indorsee with the legal title, as part of a contract cannot, at law, be indorsed so as to pass the legal title. The question then being settled, that each note was a separate contract, the case falls within a familiar rule, that contracts must be performed in the order in which they were made, that is to say, the defendants undertook to pay, and the plaintiff to receive payment of the first note, before payment of the second note, and so on, in this order, until the last note should be paid. Suppose suit had been commenced on the first note when it became due, the measure of damages would have been the principal and interest accrued when the judgment should have been rendered. The same rule would have applied to the other notes, if suits had been commenced when they severally fell due. The question would have been in each case the measure of damages; and whatever would have been the measure of damages in four several suits, ought to be the measure of damages if the notes were consolidated in one suit, or if paid without a suit, for the question is in each case the same — what was the debtor bound to pay, and what was the creditor legally entitled to receive ? The answer would be, the principal of each note, and the interest accrued on each, in consequence of the failure to make prompt payment.

We are therefore of opinion that the judgment ought to be affirmed.