Zinns Manufacturing Co. v. Mendelson

89 Wis. 133 | Wis. | 1894

NkwhaN, J.

The contention of the defendants in regard ■to the item of $209.18, due at the date of the bond, is that it is not within their undertaking; that they made themselves responsible for Michael 1. Mendelson!s performance after the date of the bond, only. That is, in effect, conceded by the plaintiff. But it avoids the effect of defendants’ contention by saying, in effect, that this is the earliest item in ■a running open account, and has long since been extinguished by payments made by the defendants generally on the ac-count and applied to the extinguishment of the earliest items of the account by the plaintiff. So that this item, as ■such, is no part of the indebtedness included in the balance •of $255.30. And this seems to be an ample answer to defendants’ contention; for it is well settled that where the debtor makes payment generally on account, and does not direct any particular application of it, the creditor may apply it. In general, he may apply it as shall be most to his interest’ 18 Am. & Eng. Ency. of Law, 239. In case of a running open account, the creditor may apply the payments according to priority of time, so that the first item on the credit side shall go to discharge or reduce the first item on the debit side. If neither party has made application of the payments, the court will apply them in that way. Id. 249; Hannan v. Engelman, 49 Wis. 278.

The item $111.54, sometimes called the “ exposition account,” was properly an item of plaintiff’s account with Michael I. Mendelson. It was really, as between him and the plaintiff, his business. It was for his convenience only, in keeping the account of his own business, that the account was kept in the name of Todell. So, also, the item $15.13, for goods sent to the office of Todell. The goods seem to have been sent for Mendelson, and to have been used in his business. They were sadirons.

The items $23.18, paid to Brown, Harper & Bros., and ■$8.50, paid to Davis for painting and decorating the booth in the Exposition Building, seem to stand on a different footing. They were for matters which, were not within the-terms of the undertaking of the sureties.' They were not. extinguished, by any permissible application, by later credits-upon the account. It is doubtful if Mendelson himself is chargeable with them. They were made in his absence, and: without his knowledge, by direction of Todell. Whether or not he is liable, his sureties are not liable for these expenditures. The liability of sureties is striotissimi juris. It is not to be enlarged by construction beyond the plain purport of the words of the contract.

By the Oonrt.— The judgment of the circuit court is reversed, and the cause remanded with directions to enter-judgment for the plaintiff in accordance with this opinion: