Thurlow v. Gilmore

40 Me. 378 | Me. | 1885

Appleton, J.

Where there is a single open account, as in the present case, the law seems well settled by the unvarying current of authorities, that a payment generally on account is to be deemed as made in satisfaction of the earliest items. Clayton’s case, 1 Mer. 585 ; Mills v. Fawkest 5 Bing. N. C., 455. In Pennell v. Deffell, 4 DeG., Mc. & G., 372, the L. J. Turner, in his judgment, says, “I take it to be now well settled, that all moneys are to be applied to the earlier items in the opposite side of the account. By every payment which he makes, the banker discharges so much of the debt which he first contracted.” This principle is by no means limited to bankers, but is applicable to all accounts. In this case there is no pretence, that any payment was. made in discharge of any particular item of the account in suit. The payments, from the facts as developed in the testimony, must be regarded as having been made upon the account, and to be appropriated towards the discharge of its earliest items.

Applying the payments in this way, there is still a large sum to the recovery of which infancy is relied upon as a bar.

It is enacted by the statute of 1845, c. 166, that “ no aetion that may be brought after the passage of this Act, shall be maintained against any person upon a contract made with a minor, unless the same is ratified in writing signed by the party to be charged by said contract, after arriving at the age of twenty-one years, or by some person thereto by him lawfully authorized,” &c. No promise in writing signed by the defendant has been made.

To avoid this defence, it is alleged, that the defendant retained the goods till after ho became of age, and then disposed of them for his own benefit. Such may have been the case, but it does not appear in the evidence reported, upon which alone we can act.

It is likewise urged upon our consideration that the defendant has made a new contract since he became of age. The evidence discloses no such new contract. It does indeed show a most clear and distinct recognition of existing indebtedness and of the amount due. But that is not enough. The statute in most unequivocal terms prohibits the maintenance of the suit, so far as it regards the goods sold when the defendant was infant. For those sold after the 15th Sept. 1852, the plaintiffs are entitled to recover.

Defendant defaulted for §187.