Waterman v. Younger

49 Mo. 413 | Mo. | 1872

Wagner, Judge,

delivered the opinion of the court.

We see nothing objectionable in the action of the court in reference to its instructions regarding a contract between Younger and Tootle. The evidence shows that Younger did the work, that Tootle recognized him and paid him at different times ; and that was sufficient to warrant the jury in finding a contract between the parties. The real contest in the case relates to the appropriation of payments, and upon, that question I do not think that the court erred. Younger undertook to do the carpenters’ work on a house for Tootle, and the plaintiffs were lumber merchants, and furnished him materials for the same. Younger failed to pay for all the materials, and the plaintiffs filed their lien against the property to secure the payment of the balance. The lien was filed, notice given, and suit brought within the proper time. It seems that Younger was a general contractor, and was building other houses at the same time that he was at work on Tootle’s house, and that on the ledger plaintiff kept a general account and charged him with all the lumber he bought; but when the lumber was delivered, the quantity got for the respective houses was charged separately on the journal and'was also placed on the wagon ticket. Younger made two payments on account o£ the lumber furnished for Tootle’s house, which were duly credited; and before the filing of the lien he paid the plaintiff a sufficient amount to pay off the entire demand, which was credited to his general account. It does not appear from what source this money was derived, nor that any direction was given by the debtor as to how it should be appropriated. Had it been applied to the first items as they stood on the ledger, it would have extinguished the liability for which this lien is prosecuted. It is now insisted that, as Younger gave no specific directions in regard to the appropriation, the creditor had no discretion, but was bound to appropriate it to the first items on the account. But this is not correct. In the first place, the general charge on the ledger was not conclusive proof that the plaintiff intended to look solely to Younger for their debt; and in the next place, the rule is that i£ the party paying fails to designate or direct the payment to be placed to his credit on a certain or particular demand, and there be several demands against him in favor of the creditor, then, in the absence of any direction how and where to give credit, the creditor may place it as a payment on any of his demands at his option. (Middleton v. Frame, 21 Mo. 412; McCune v. Belt, 45 Mo. 174.)

I think that the court properly instructed the jury in reference to the law governing the appropriation of payments, and the two instructions given by the court of its own motion manifestly placed the case before them correctly.

The record exhibits no error, and the judgment will be affirmed.

Judge Bliss concurs. Judge Adams absent.