Penn v. Lewis

• Decision Date: 31 July 1848
• Parties: PENN v. LEWIS.
• Court: Missouri Supreme Court

12 Mo. 161

PENN

v.LEWIS.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO SALINE CIRCUIT COURT.

STRINGFELLOW, for Plaintiff. The payee had the right to give the credit on such note as he pleased, and the offset ought to have been rejected, at all events the $45 for the horses and spoons ought to have been rejected, as it was argued that this amount should go as a credit upon another note. Whereas, in this case the former creditor had several demands, as to such payments as were not directed by the debtor to be especially applied the court will make the appropriations upon principles of justice and will so apply the payment as not to injuriously affect the rights of third parties. In this case, to apply the payment as done by the Circuit Court would be a fraud upon the assignee. 15 Wendell, 19; 9 Cowen, 409, 420, 747.

SCOTT, J.

This was an action of assumpsit brought by Penn against the defendants in error on an assigned promissory note. The cause was submitted to the court sitting as a jury. No instructions were asked and we are only required to review the finding of the court on the evidence. The judge who heard the witnesses testify, knows best what weight is due to their evidence, and this case falls within that numerous list in which it has been held that this court will not interfere with the verdicts of juries.^(a) The other Judges concurring, the judgment will be affirmed.

(a). Oldham v. Henderson, 4 Mo. R. 295, and note.