Sawyer v. Tappan

14 N.H. 352 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The general rule is, that where a person owes several debts, and pays money without any specific appropriation of it, the creditor may apply it to which debt he pleases. Peters vs. Anderson, 5 Taunt. 596; Shaw vs. Picton, 4 B. & C. 715. But the debtor need not declare the appropriation of it at the time of payment. It will be sufficient if it can be collected, from other circumstances, that he intended, at the time of payment, to appropriate it to one account specifically. Shaw vs. Picton, 4 B. & C. 715. It is also held that an appropriation by a creditor is not complete until the other party has been notified of it. Simson vs. Ingham, 2 B. & C. 65.

In the present case, when the receipt was given, on the 16th day of January, 1837, all the Presby notes were barred by the statute. No application of the sum for which the receipt was given was made on them until a year or more had elapsed from its date. The plaintiff’s position is, that the defendant was not authorized to make the application upon the Presby notes, because they were due from Sawyer in his capacity as administrator. The defendant contends that the application might be made, as the administrator had assets and was authorized to sell property.

In the case of Goddard vs. Cox, Strange 1194, the defendant owed a debt on his own account, and also a debt due from his wife drum sola, and another debt due from her in her capacity as an executrix. He made several payments, generally upon account. The court held that the plaintiff might apply the money received to discharge the wife’s own debt; “ but as to the demand against her as an executrix, the validity of which depended on the question of assets and the manner of administering them, was of opinion that the plaintiff could not apply any of the money paid by the defendant to the discharge of that demand.” The reason, therefore, why the plaintiff could not thus apply the money, seems to have been, because it was uncertain whether there were any assets or not; and also whether, if there had been any, they had been properly administered. There was nothing to show that the defendant had so conducted as to make himself personally responsible for the debt, nor is there in the present case. One debt was duo from Sawyer personally ; the other as the administrator of Presby. He had procured a license to sell some of the property, and had sold some of it; and there is evidence that he said at one time that Tappan could wait well enough for his debt. This seems to show that he did not intend to pay the Presby notes except from the avails of the estate. It does not show, either, that he considered himself individually liable, or that he was so in fact; that he promised to pay them, or that he had been guilty of any maladministration. It is unnecessary to examine the numerous cases relating to the appropriation of payments. The decisions all proceed on the ground that the debtor is individually liable for the several debts. Sawyer was not so liable for the Presby debt, and therefore Tappan had no authority to apply the payment in satisfaction of it.

But the defendant contends that the plaintiff’s remedy on the receipt is barred by the statute of limitations. It was dated on the 16th day of January, 1837, and the suit was commenced in the month of February, 1843 ; after the lapse of more than six years. By the terms of the receipt, the money was to be applied on a note. We have already seen that Tappan was not authorized to apply it on the Presby notes, and therefore it was to be applied on Sawyer’s personal debt. But it is very clear that the statute did not begin to run from the date of the receipt, for at that time no cause of action existed upon it against Tappan. The money rvas paid for a specific purpose, stated in the receipt. It was received in part payment of a note. It was not a sum which Tappan was immediately bound to repay; for if so, the transaction would have been futile, destitute of meaning, and opposed to the intention of the parties. A different state of facts might afterwards exist, by reason of which Tappan might become liable to repay the money; but such facts did not then exist. It is sufficient for the present question to say, that as the statute does not begin to run until the cause of action accrues, and as a cause of action did not accrue upon the giving the receipt, the plea of the statute cannot be supported. If the defendant should refuse, on a demand being made, to apply the money on the note upon which it might legally be applied, he would be liable to repay the money to the plaintiff, and a cause of action would then accrue. And it was competent for him to show, in support of his plea, that such a demand and refusal had been made before the 28th day of February, 1843, and that the plaintiff’s remedy had been barred by the lapse of time. As there is no such evidence in the case, the plea cannot be supported.

But in order to maintain the suit, the plaintiff must show that he has requested the defendant to apply the money on the note, and that he has refused so to do. He has offered evidence that he made such a demand in the year 1839, and that the defendant refused to make the application ; but the witness by whom these facts were proved was the son and heir of Jabez Sawyer, and therefore incompetent from interest. It has been repeatedly settled that a witness is incompetent whoso testimony tends to increase a fund in which he is entitled to participate. Marland vs. Jefferson, 2 Pick. 242; Phoenix vs. Ingraham, 5 Johns. 427; Stewart vs. Kip, 5 Johns. 256; Rudge vs. Ferguson, 1 C. & P. 253; Rex vs. Whiting, 1 Salk. 283. A residuary legatee is not a competent witness for the executor who brings an action for a debt due the testator, because he receives an immediate benefit by a verdict for the plaintiff. Doe vs. Tyler, 6 Bingh. 390. And the present point has been directly settled in the case of White vs. Derby, 1 Mass. 238, and in Vultee vs. Hayner, 2 Hall (N. Y.) 376.

The witness, therefore, wa's improperly admitted.

Verdict set aside.