Daniel v. Johnson

• Decision Date: 31 August 1859
• Citation: 29 Ga. 207
• Parties: Egbert P. Daniel, plaintiff in error. vs. James L. Johnson, defendant in error.
• Court: Georgia Supreme Court

29 Ga. 207

Egbert P. Daniel, plaintiff in error. vs. James L. Johnson, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1859.

Assumpsit, in Spalding Superior Court. Tried before Judge Cabaniss, at May Term, 1859.

This was an action of assumpsit by Egbert P. Daniel, against James L. Johnson, on three promissory notes; one for $1,150, payable 25th December, 1851; one for $200, payable 25th December, 1854, and one for $140, dated 8th January, 1852, and payable one day after date.

The following credits were endorsed on the eleven hundred and fifty dollar note, viz.:

"One half of James L. Johnson's stock, when ascertained, at wholesale prices, is to be placed to his credit on this note. 1st June, 1852, which is $556.28."

"Received on the within note an account on James Daniel for $28. 25th December, 1855."

"Received on the within note $35.25, from McCune's note. 22d February, 1854."

On the $140 note was the following credits:

"Received on the within note $28.00, October 1st, 1853, from Harleston's note."

"Received on the within note $5.00, from Bozwell's note. 1st August, 1855."

The defendant pleaded payment and set-off.

At the trial plaintiff offered in evidence the note sued on and rested.

Defendant, amongst other things, offered to prove that plaintiff had admitted some two or three years before that defendant had turned over to him notes amounting to about $550, amongst which was a note on Burrell Orr for $150, to go in payment of defendant's indebtedness to him. Plaintiff objected to this testimony; the court overruled the objection and plaintiff excepted.

Defendant having closed, plaintiff in reply offered in evidence a note made by Daniel and Johnson (plaintiff and defendant, who had been partners in a tanning business) dated 3d November, 1851, payable to Thomas C. Trice, or bearer, for $445, with the credits thereon, and which plaintiff claimed he had paid off. Defendant objected to this evidence, on the ground that said note was against the partner-ship of Daniel & Johnson, and the payment or possession thereof by plaintiff was not an individual demand against defendant. The court sustained the objection and plaintiff excepted.

The plaintiff then offered in evidence the records of the proceedings of a chancery cause then pending, in which defendant was complainant, and plaintiff was defendant, the answer of defendant to said bill, being a part of said record, and in which answer it was alleged that the notes now plead as payment or set-off was pleaded as payment to Daniel, as agent for Martha C. Martin. Defendant objected to the admission of this record, on the ground that the answer was not competent evidence for plaintiff.

The court sustained the objection as to the answer, but holds that plaintiff might introduce the bill. To which ruling plaintiff excepted.

The court charged the jury as follows:

"That when a debtor makes a payment to a creditor who has several demands against him the debtor has the right to apply it to any demand he pleases, and may specify; and if he makes no application, the creditor has the right to apply it to any of his demands he may see proper; if no application is made at the time of payment by either party, the law will then apply it to the debt of the lowest grade. In the case before you, if the payment made by the defendant and which he has pleaded, was by agreement of the parties to be applied to an indebtedness of defendant other than the notes sued on, it must be so applied. If the defendant intended and directed the payment to be applied to the notes sued on, he was then entitled to a credit to that amount; but if no application was made by either at the time of payment, then it was for them, under the direction of the court, to make the application, and they had no right to apply the individual funds of defendant to the payment of his share or proportion of partnership debts, which had been paid off or taken up by the plaintiff; but his individual assets must befirst applied to the individual debts of defendant before any could be applied to the payment of partnership demands or liabilities. His individual funds could not be legally applied to advances made by one partner for the partnership until an account had been taken between the partners and a balance found against him.

The jury found for the plaintiff two hundred and forty-two dollars and six cents;...