| Wis. | Jun 15, 1856
By the Court,
We do not think that the judge before whom the cause was tried, committed any error in permitting the contract to be read to the jury as evidence, for the purpose of showing that the payments which the defendants had proved, were intended to apply upon that contract, and nof upon the one which was the subject matter of the suit. It appears that, after the contract which the defendants were sued upon, was read to the jury, and after proof had been introduced, on the part of the plaintiff to show a performance on his part, the defendants introduced testimony tending to show that payments had been made to the plaintiff of various sums of money, without designation as to what particular indebtedness they were to apply. Under such circumstances it is clear that the plaintiff had the right to show that the payments were made on account of indebtedness arising upon a contract other than the one which was the subject matter of the suit; and for the purpose of showing that fact, he had the right to read the contract to the jury. It appears to have been read to the jury for no other purpose, and the reading of it for such a purpose was entirely proper.
The contract was one by which the plaintiff agreed to construct a number of machines for the defendants, and the defend-ants agreed to pay for the same, the sum of money named in the contract. The defendants contend that the delivery of the machines was a condition precedent to the plaintiff’s right to recover, and that the question of delivery should have been left to the jury. If the question of the delivery of the machines was controverted at the trial, the proof upon that subject should Rave been left to the jury under proper instructions from the court. But we cannot tell from the bill of exceptions, what the proof was in regard to a delivery óf the/ machines, nor whether the fact of the delivery of the machines was a matter in dispute between the parties.
We shall therefore decline to express any opinion upon the ruling of the judge upon that subject.
■It appears from the bill of exceptions, that .the judge permitted the plaintiff to apply all the payments which had been made by the defendants, before the -1st day of August, 1854, ■upon the contract which was read at the trial and which was not ■the one in suit. The defendants objected to this application of the payments, and excepted to the ruling of the judge allowing it. It has been decided in a great number of cases, and indeed ■does not now appear to be controverted, that when a debtor who •owes money upon several distinct contracts, makes payments without designating upon which of the contracts he wishes to have the payments applied, the creditor is at liberty to apply them in such manner as he shall think proper. 6 Taunt. R. 597; 2 Maul. & Sel. 18; 4 Crunch, 317. But this does not overcome the objection to the ruling of the judge in this case. It is apparent that this power of the creditor to make the application of payments as he shall ehoose, ought not to exist, except in regard to actual existing debts admitted to be such by the •debtor, or established to be such by testimony.
To allow a creditor to apply payments thus made, to a debt which he claimed to have against the debtor, but the existence of which the latter denied, would be to compel him -to pay, per
In this case it was admitted that an action at law had been commenced by the plaintiff against the defendants upon the contract, to pay which the payments were applied by the plaintiff; and that the defendants were defending the suit. We do not see, therefore, how it could have been determined without a trial, that there was any indebtedness from the defendants to the plaintiff upon that contract. The defendants did not admit it, and certainly the court ought not so to have decided without a trial. Further, in this case it appears, that the liability of the defendants upon the contract, was contingent upon the performance of it by the plaintiff on his part. The contract did not, therefore, establish an indebtedness prima facie against the defendants without proof that the plaintiff had himself performed his part of the contract.
We are, therefore, of opinion that the judge erred in allowing the plaintiff to apply the payments in the manner stated in the bill of exceptions, and for this error must reverse the judgment. Judgment reversed and a new trial ordered.