Bishop v. Hart

• Decision Date: 18 May 1901
• Citation: 86 N.W. 218,114 Iowa 96
• Parties: HENRY W. BISHOP, Receiver, Appellant, v. J. M. HART AND MARY B. WETHERILL
• Court: Iowa Supreme Court

86 N.W. 218

114 Iowa 96

HENRY W. BISHOP, Receiver, Appellant, v. J. M. HART AND MARY B. WETHERILL

Supreme Court of Iowa, Des Moines

May 18, 1901

Appeal from Carroll District Court.--HON. S. M. ELWOOD, Judge.

ACTION to recover the balance of the purchase price of goods sold and delivered to defendant Hart, payment of which was guaranteed by the defendant Wetherill. At the conclusion of the trial the court directed a verdict for defendants, and plaintiff appeals.

Reversed.

Lee & Robb for appellant.

C. E Reynolds for appellee.

OPINION

DEEMER, J.

The motion was based on the ground that the uncontradicted evidence showed payment of the bill by the defendant Hart. The issues involve the doctrine of the application of payments. The rules with reference thereto are well understood, and not disputed. Hart made payments from time to time, and claims that he directed application thereof to the items of account sued upon, while plaintiff, admitting the payments, claims that, except as to one item, no direction was given as to how they should be applied; that this payment was applied as directed; and that he credited other payments on items of account not sued for in this action. If defendant Hart directed the application of payments as claimed, then his motion was properly sustained. But, if he gave no direction, the creditor had the right to make such application as he saw fit, and in the absence of application by either, the court will make them in accordance with its views of the equity of the case, and in general will apply the payments to the unsecured rather than to the secured items. This general rule is also subject to some exceptions that need not be stated. The motion was evidently sustained on the theory that the uncontradicted evidence established a direction by Hart regarding the application of the payments at the time he made them. If he gave any such direction, it must have been by letter; for plaintiff lives in Chicago, and defendant in Carroll, Iowa. That he did give such direction when he made his first payment of $ 200 is conceded, and that payment was applied as directed. He also claims that (and we quote from his evidence) "some of the money was received from Mary B. Wetherill, for the purpose to apply on a guarantied bill. I told them by letter to apply the money or draft which I sent them on guarantied bill which was on November 16 and December 16, 1895, which overpaid the...