27 Vt. 735 | Vt. | 1855
The opinion of the court was delivered by
The plaintiff, in this action, seeks to recover the amount of two notes given in September, 1843, payable on demand, in bar of which the statute of limitations is plead. In October, 1847, the plaintiff, having the notes with him, called upon the defendant and he paid a certain sum, though not enough to pay one note, and the plaintiff endorsed one-half the sum paid on one note, and the other half upon the other of them.
The testimony, whether the application of the money so paid was by the approbation of the defendant, or not, was conflicting.
The jury were told that, if the defendant, at the time of payment, gave no direction where to apply the money, the plaintiff might apply one-half upon one note and the other half on another note, provided, under the circumstances, such an application would be reasonable, and such as the plaintiff might reasonably expect would be satisfactory to the defendant, if known to him. If the application had been made by the approbation of the defendant, he could not complain, but it was not put to the jury to find any such fact.
In the case of Ayer v. Hawkins, 19 Vt. 26, no direction was given by the debtor as to the application, and it was held that the creditor could not split up the payment and endorse a part of it upon one note and the residue of it upon others. Though in that case the debtor did not exercise his right to direct the application, yet it was held that all he yielded to the creditor, by such neglect, was the right that he might select upon which of the notes he would make the application, and the debtor would be bound by such a selection. Though in the case in the 19th of Yt, the statute of limitations had actually run upon the notes,, when the endorsements were made, yet, we apprehend, the case before us is not to be distinguished, in principle, from that case.
In the one case, the statute of limitations had run, while in the other it was running, and if the splitting up the application of the payment is binding upon the debtor, the effect is to revive all the
The judgment of the county court is reversed and the case remanded.