Blake v. Sawyer

• Decision Date: 15 December 1890
• Citation: 21 A. 834,83 Me. 129
• Parties: BLAKE v. SAWYER.
• Court: Maine Supreme Court

21 A. 834

83 Me. 129

BLAKE

v. SAWYER.

Supreme Judicial Court of Maine.

Dec. 15, 1890.

(Official.)

Exceptions from supreme judicial court, Somerset county.

This was an action of assumpsit on a promissory note given by the defendant December 3, 1879, for $198.72, with interest, payable on demand, to Fuller, Buck & Co., or order. Said note became the property of Andrew H. Buck, one of the members of the firm of Fuller, Buck & Co., at the dissolution of the firm, February 22, 1880. It bears on its back the indorsement, "Fuller, Buck & Co.," in the handwriting of Josiah L. Fuller, member of said firm: also an indorsement is follows: "Jan. 26, 1881. Rec'd $12.30 in work." On that date, January 26, 1881, it appeared in evidence that the defendant was owing Andrew H. Buck a store account and the note in suit. The writ is dated January 18, 1887.

The pleadings were the general issue and statute of limitations by a brief statement.

The plaintiff introduced evidence tending to show that three unreceipted bills, amounting to $12.30, for labor performed by defendant for Andrew H. Buck, were brought to said Buck on January 26, 1881, by defendant's minor son, George, with no direction on the part of defendant as to which debt the amount of these bills should be applied to; that Buck did at this time indorse that amount on the note in suit, and that defendant never after called on Buck for payment of these bills.

The defendant introduced evidence tending to show that at the time the last of the three bills was presented to Buck defendant's son, George, directed said Buck to apply the amount of the three bills to the payment of the store account, and refused to consent to its being indorsed on the note; also that these bills were due from Buck to the firm of David Sawyer & Son. Plaintiff introduced evidence tending to disprove the existence of the partnership.

The plaintiff's counsel claimed before the jury that if on January 26, 1881, the defendant was owing said Buck the note in suit, and also a store account, and caused these bills, amounting to $12.30, to be presented to Buck for payment, with no direction as to which debt they should be applied to, Buck could apply them on the note if he saw fit, and thereby interrupt the running of the limitation.

On this branch of the case the presiding justice, among other things, instructed the jury as follows:

"Now, the issue that you are to pass upon in this case is whether a payment of twelve dollars and thirty cents was made upon this note, as claimed by the plaintiff, and whether it was made by the defendant upon the note. As I understood the position of counsel for the plaintiff, he claims that if the defendant caused the bills to be passed in to Buck, giving no directions as to how they should be applied, Buck, who then held the note, had the right to treat them as a payment upon the note, and apply...