20 Tex. 772 | Tex. | 1858
The defendant being indebted to the plaintiffs on open store account, and also for moneys advanced on his cotton, the receipts of the advances being acknowledged in writing, with a promise to pay interest at ten per cent, until the sale of the cotton, the first question is as to the application of the proceeds of the sales of the cotton. The general rule is, that the debtor, at the time of payment, has the right to apply it to which debt he pleases. If he fail to appropriate it, the creditor can, with some exceptions, apply it at his election. If both fail, it will be applied by the law, according to the equity and justice of the case. (9 Tex. R. 610; 16 Id. 200; 18 Id. 64; 2 Greenleaf Evidence, § 529; 1 Story, Eq. § 549b.)
The debtor having, at the time of the sales, made no specific designation of the proceeds, the plaintiffs were left to their election to apply the payment. But this did not vest them with power to act capriciously, or to make such designation as would
There has been some doubt as to the time at which the creditor should exercise this right of appropriation. In Mills v. Fowkes, 5 Bingham, N. C. 455, recent cases were cited by counsel, in which it was substantially held, that the creditor must specify, and in a reasonable time, the debt which he proposes to discharge. (2 B. & Ald. 39 ; 2 B. & C. 65; 29 Eng. Com. Law, 24.) This seems a most reasonable doctrine. If the debtor lose his right of appropriation, unless exercised at the moment of payment, the creditor should act upon his right, if not immediately, at least within a reasonable time ; and not. delay until, perhaps, there be a great change of circumstances, and especially where the law, on his failure, will do exact justice between the parties. But the rule, as at present established by the decisions, is otherwise. (5 Bing. N. C. 455; 4 Cranch, 317; Moss v. Anderson, 4 Iredell, Eq. R. 42.)
It may be doubted whether the plaintiffs made any application of the payment, until after the commencement of suit, when, on the authorities most favorable to the creditor, it would have been too late. The original petition shows its application in one mode, leaving a balance due on the whole indebtedness, of two hundred and sixty-seven dollars and seventy-six cents. In an amended petition, an account current is exhibited (the mysteries of which the learned counsel of plaintiff in error acknowledges his inability to solve,) which increases the balance to three hundred and ninety-one dollars and ten cents. This is quite a difference, and leaves the inference that this was not the original, but a new mode of making up the accounts.
But whether the application were made by the plaintiffs in due time or not, is not, in this case, of material consequence. It is evident from the receipts that the defendant agreed to pay interest on the advances, until the sales of the cotton. Now, although this be not such designation as would prevent the creditors from so applying the proceeds as to save them from the
The judgment takes for its basis the increased balance, as shown by the amended petition, and must be reformed as above directed.
The second question is as to the sufficiency of the proof of the account.
We are of opinion that the account was sufficiently proved. The original books of entries were produced, proven to be such by the salesman and bookkeeper, who had been clerk during the time the debt was contracted. He and another clerk proved that they kept correct books. There was abundant proof that the defendant had dealings with the house. The items in the handwriting of one of the plaintiffs, with the exception of one small amount, were for articles ordered by letters of defendant. The other articles were principally in the handwriting of the clerk, the witness Bankhead. The account was presented to defendant before suit. He made no objection, except that it was a little more than he expected, but he presumed it was all right. There was also proof by two other clerks. The plaintiffs also offered to prove the cash items, being for freight on defendant’s cotton, which was refused by the Court, on the ground that they could not be proved by the books. But understanding, in the progress of the cause, that the plaintiffs meant to prove by the clerk who was a witness, that the freight was paid as charged in the account, judgment was given by the Court for the whole amount, including freight.
There was certainly no injustice in this proceeding. On the contrary, its operation was to save the plaintiffs from the injury which would have arisen from the mistake of the Court.
The account of plaintiffs was sufficiently proven; but there
Reversed and reformed.