12 Fla. 517 | Fla. | 1868
delivered the opinion of the Court:
The en’ors assigned are properly reducible to two points, viz,:
1st. The proper construction of Ordinance No. VIII. of the convention of 1865; and 2d. The debtor’s right of appropriation of funds deposited by him in the bank, and to make the appropriation after the debt became due, and even after the funds so deposited had been entirely drawn out by him.
The ordinance referred to was adopted by a convention of delegates elected by the people soon after the close of the late war, while the countzy was in a peculiar condition on account of the war and its results.
I. The appellant claims that the court did not conform to the spirit of the ordinance, and insists that the “ scaling proces” is applicable, not at the date of the contract, but at the time when the cause of action occurred, and even later.
The ordinance applies to all “ contracts made and entered into during’ the late war, * * and the courts arc thereby authorized to admit testimony as to the value of the property or consideration contemplated by the parties to said contracts, and to instruct the jury to find accordingly ; provided, that the defendant shall allege by plea under oath, and prove to the satisfaction of the jury, that the currency contemplated in payment of said contract was Confederate or State Treasury notes, or upon what basis the consideration or the value of the property or its use, which was estimated at the time of the formation of said contract.”
This ordinance contemplated the accomplishment of two principal ends : the recognition of the currency, or the thing which supplied the place of currency during the war, and which really formed the standard of nominal values in the transaction of business during the war, not necessarily as a thing of real value, but as a medium of commercial transactions ; and to provide the mode of ascertaining the actual money value of the consideration of the contract, whether such consideration were Confederate or State notes or any thing else. It was a measure of relief extended to tho'se who at the close of the war were found indebted upon contracts founded upon fluctuating and uncertain values. It was not intended to relieve from any and all liability to perform such contracts.
Even if the language of the ordinance in this respect were more obscure than this is claimed to be, the evident intention of
The testimony of the defendant is that the notes “ were given for Confederate money and in connection with a Confederate money transaction.” Other than this there is no evidence that shows upon what basis tho consideration was estimated ; that any “ estimate” was made ; or that the “ currency contemplated in payment” was one thing or another.
The currency in use at the time of the making of these notes was worth, eighty-five to ninety cents upon the dollar in gold. The defendant then received what was nearly equal in value to gold, and could have exchanged it for gold. When the notes became due these Treasury notes were greatly depreciated, and by estimating the value of his promissory notes by their nominal value in Confederate currency, if he had paid his notes therewith ho would have made a handsome margin, and tho lender would have encountered a serious loss.
We do not believe the framers of the ordinance intended that the debtor should satisfy the debt contracted by him by paying a smaller amount of money or of value than he received; or that the loss by depreciation should fall upon any other than the holder of currency, according to the ordinary rule. If they had so intended they would doubtless have said so in plain words; and in that caso, the appellee here would doubtless have attacked tho ordinance in another direction, and other questions would have been raised in this cause.
II. The appellant, asserting his prior right of appropriation of
It is a well-settled general rule that if one owes two or more, separate debts and pays money to his creditor, the debtor has a right to apply the payment to which of the debts he pleases, provided he elects at the time of payment the purpose for which it is made. If ho does not so designate, the j>a_yee may elect how it shall he applied. It has been held in some cases that the creditor may appropriate at a future day, oven at tho time of bringing his action, and is not compelled to make the appropriation immediately, like the debtor. The rule of the civil law is that where no application is made by either party at the time, the law will make the application upon tho presumed intention of the debtor. There has been much confusion on the subject in England. Equitable principles have frequently controlled, and the courts have made the application in sucb manner as to secure either part}'- from tho greater hardship or sacrifice. See Pattison vs. Hull, 9 Cowen, 747, reviewing and collating the decisions of the English and American courts. 19 Vt. R., 26; Stone vs. Seymour, 15 Wend., 19.
A porsoii owing money under distinct contracts, has undoubt
It is equitable to apply payments first to extinguish those debts for which the security is most precarious. 7 Cranch, 572; 6 Cr., 8.
It is too late for either party to claim a right to make an appropriation after tho controversy has arisen, and a fortiori, at the' time of trial. 9 Wheat., 720; 1 Mason, 328.
If the debtor waive his right to direct the application of a payment, acourt of equity will not disturb it. 10 S. & M., 113.
The rules applicable to the subject of the appropriation of payments were so fully and ably discussed that we have deemed it fit and proper to examine the authorities to some extent.
“The appellant submits whether in this case, where tho appellee was the debtor of the appellant to the extent of the balances in his favor on deposit, the appellee was not bomid in good faith to apply such balances to the payment of the notes.” He cites several cases showing the creditor’s right to apply de
The doctrine of “ appropriation of payments ” will scarcely apply to the present case. Here were no payments made upon these notes; no directions to apply any of the moneys on deposit standing to his credit toward the extinguishment of the notes ; the cotton pledged to secure those notes remained in his possession and was sold by him, and the bank was not notified that the moneys deposited by him and passed to his credit in Ms deposit account were the proceeds of the sale of the cotton pledged; and he draws his checks from day to day against his deposits until his funds are all drawn out; and on the 4th of March, 1864, had overdrawn to the amount of over §400, which, he made good on that day, leaving the notes now in suit still unpaid lie expressed surprise when the notes were produced, and said he supposed them to be paid, and had forgotten them. This is doubtless true, and yet the bank bad had no intimation that ho had desired them to be cancelled by an appropriation of his deposited funds, without express orders to that end, and without his check for the amount upon his deposits. He had exercised his right of appropriation of his funds by withdrawing and using them for other purposes, and having done so, it is too late to make the appropriation now that the funds are gone, pursuant to his express directions, beyond the reach of the hank, and have been used by the appellant himself.
It was urged in the argument that by the pledge of sixty hales of cotton by the appellant to the appellee, the latter became the bailee of said cotton, and that it was his duty, therefore, on the sale of the cotton, to apply the proceeds to the extinguishment of the notes.
It is difficult to perceive, however, in view of the fact that the bailor retained the possession of the cotton, and thereby became the bailee of his bailee, and afterwards sold it and appropriated the proceeds to bis own use, how be expects to avail
The judgment of the circuit court must be affirmed.