65 Me. 70 (Me. 1876), Phillips v. Moses

Citation:65 Me. 70
Opinion Judge:BARROWS, J.
Party Name:WALTER F. PHILLIPS et als. v. HENRY O. MOSES.
Attorney:N. Webb and C. Hale, for the plaintiffs, S. C. Strout & H. W. Gage, for the defendant, contended that as matter of fact he did not appropriate the payments.
Judge Panel:APPLETON, C. J., WALTON, DANFORTH, VIRGIN and PETERS, JJ., concurred.
Case Date:February 22, 1876
Court:Supreme Judicial Court of Maine
 
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65 Me. 70 (Me. 1876)

WALTER F. PHILLIPS et als.

v.

HENRY O. MOSES.

Supreme Judicial Court of Maine.

February 22, 1876

1875.

In general, where there are several demands or items, some of which are legal and others illegal, a general payment must be applied to the legal charges, to the exclusion of the illegal ones,-to debts lawfully due, and not to unlawful claims.

ON MOTION.

ASSUMPSIT.

The plaintiffs, September 13, 1873, sued the defendant in the superior court for a balance due on account to date, of $3481.68. The accounts were sent to an auditor, who found due the plaintiffs $2077.04.

There was evidence at the trial afterwards before the jury that the defendant, who was a retail druggist at Bridgton, had been a regular purchaser on open account current from the plaintiffs, who were wholesale druggists at Portland, from 1868 to about the time the suit was commenced; that the amount of such purchases of all kinds was $21,711.28, and included therein were purchases of alcohol and other spirituous liquors to the amount of $6842.26; that payments were from time to time made by the defendant to the plaintiffs without designating specially for what items intended, and were passed by the plaintiffs upon their ledger to the credit of the whole account; that all the payments amounted to $19,616; that near January, 1872, there was a settlement in which the books were balanced to the July previous; that at about the time of the settlement the defendant's store at Bridgton was burned, and new arrangements made, in accordance with which his purchases thereafter for the year 1872 were adjusted and paid, leaving due at the date of the writ, as the plaintiffs claimed, charges for the years

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1871 and 1873 to the amount allowed by the auditor, that amount being only the balance after deducting all charges for alcoholic liquors.

The defendant denied the settlement, and testified that the account was continuous and ran all the way from $1200 to $3500; that at the time he was burned out it was about $2400; that he never paid at any particular time more than he thought was due; that he intended to appropriate his payments to the legal part of the account; that he never said he did not intend to pay for the liquors, because he did intend to pay for the whole.

The jury returned a verdict for the defendant, and the plaintiffs filed a motion to set it...

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