Long v. Miller

• Decision Date: 31 October 1885
• Citation: 93 N.C. 233
• Court: North Carolina Supreme Court
• Parties: B. F. LONG, Adm'r, v. J. S. MILLER, et als.

93 N.C. 233

B. F. LONG, Adm'r,

v.J. S. MILLER, et als.

Supreme Court of North Carolina.

October Term, 1885.

CIVIL ACTION tried before Montgomery, Judge, and a jury, at August Term, 1885, of IREDELL Superior Court.

There was a judgment for the plaintiff, and the defendant apappealed.??

Messrs. Scott & Caldwell and W. M. Robbins, for the plaintiff .

Messrs. R. F. Armfield and D. M. Furches, for the defendant .

SMITH, C. J.

The appeal of the defendant Miller, from the judgment rendered against him, brings up for review the correctness of the ruling of the Court, upon the question of the effect upon his liability, to be attributed to the entering of the credit on the note under the circumstances detailed in the evidence. The plaintiff produced the note, bearing the endorsement of a payment of one hundred and five dollars, in the hand-writing of the deceased administrator Tucker, then acting as such, bearing date May 12, 1881, and an order, obtained from the appellant, on notice to produce, of the same date, in form as follows:

STATESVILLE, N. C., May 12, 1881.

Messrs. J. S. Miller and S. A. Sharpe:

DEAR SIRS:--Please pay Milholland & Bell one hundred and five dollars, to be credited on your note due A. Mitchell's estate.

T. S. TUCKER,

Administrator of A. Mitchell.

The note showed a defacing mark in pencil drawn across the name of Sharpe.

The testimony of the appellant Miller, examined as a witness on his own behalf in reference to the transaction, is in substance, that he first saw the order drawn by the administrator, Tucker, when presented by the said Milholland, about the time it bears date; that he remarked to Milholland that Sharpe had nothing to do with the matter, and the inserting of his name was a mistake, at the time running a pencil line through it; that he himself owed an individual note to the intestate's estate, and would pay the order on that; that he paid the order, and when asked by his own own counsel, added that his intention was to make the payment of the order on his individual debt, and not on that of Miller and Sharpe.

Milholland testified in effect, that before he went to Tucker for the order, the appellant had told him that he owed the intestate an individual debt, and if he would get the order from the administrator he would pay it; that he did not communicate to the latter what appellant had said, when he presented his account for the monument erected in memory of the intestate and received the order from the administrator, nor was he requested to do so.

The appellant's counsel proposed further to prove by him that he told the administrator how he wanted the money applied, not at the time of payment, but how long afterwards he was unable to say. On objection, the evidence was ruled out, but on what grounds, it is not stated.

While it may be questioned whether this is a “communication,” falling under the interdict of §590 of The Code, it was inadmissible to change an application before made, if such is the effect to be given to the endorsement, or to vary the previously fixed relations of the parties thereto.

A debtor who owes several separate and distinct debts, has a right to direct the application of any payments he may make, to such of them as he chooses, but this right must be exercised at the time when the money is paid; otherwise, the right to make the appropriation devolves upon the creditor. This rule is well established in the adjudications of this Court, to which appellant's counsel have referred in their brief. Sprinkle v. Martin, 72 N....