Phipps v. Willis

• Citation: 32 S.W. 801
• Parties: PHIPPS et al. v. WILLIS et al.
• Decision Date: 17 October 1895
• Court: Court of Appeals of Texas

Page 801

32 S.W. 801

PHIPPS et al. v. WILLIS et al.

Court of Civil Appeals of Texas.

October 17, 1895.

Appeal from district court, Ft. Bend county; T. S. Reese, Judge.

Action by P. J. Willis & Bro., a corporation, against A. F. Phipps, as principal, and Lena I. Blakely, as guarantor, on an account current. From the judgment rendered against her, defendant Lena I. Blakely appeals. Modified.

E. P. Hamblen, for appellant. P. E. & D. E. Peareson, for appellees.

PLEASANTS, J.

The appellees instituted suit in district court of Ft. Bend county against A. F. Phipps to recover $1,579.07, balance alleged to be due on an account current from August 16, 1890, to October 3, 1891, with interest from September 1, 1892, and the appellant, Mrs. Lena I. Blakely, was made defendant in said suit by plaintiff, and judgment asked against her for $1,500 of said account; the plaintiff's demand against her being based upon the following guaranty, executed by her on the 28th of January, 1891: "I, Mrs. Lena I. Blakely, of Fort Bend county, Texas, for and in consideration of one dollar to me in hand paid by P. J. Willis & Bro., Incorporated, of Galveston, Texas, and in consideration of their selling, during the year 1891, to A. F. Phipps, of Kendleton, Fort Bend county, Texas, in goods, wares, and merchandise in their lines, to the amount of fifteen hundred dollars, I do hereby underwrite and guaranty to the said P. J. Willis & Bro. that, in the event the said A. F. Phipps should fail to pay them the whole or any part of such indebtedness arising from the sale of goods aforesaid, to pay same myself, and hereby bind myself and heirs to faithfully fulfill this contract, in the event of failure on the part of the said A. F. Phipps, by October, 1891; and it is further agreed and understood that the aforementioned amount is payable at the office of P. J. Willis & Bro., of Galveston, Texas." The defendant Phipps made default, and Mrs. Blakely averred that she guarantied the payment of goods to be sold to Phipps to the extent of $1,500, but that plaintiffs had sold him merchandise greatly in excess of that sum, and that Phipps was unable to pay in full his indebtedness, but that he did pay plaintiffs, prior to October, 1891, more than $2,500 upon the goods sold him during said year, and that she was thereby released from her guaranty. The verified account sued on shows that, prior to January 28, 1891, Phipps was debited with merchandise aggregating $786.60 and credited with payment up to that date, amounting to $452.22, leaving balance due on that day $334.44, and that from January 28, 1891, to October 3d, both days inclusive, plaintiffs sold him $3,361.26, and credited him with payments made from the 28th of January to November 9, $2,116.63. Upon trial of the cause by the judge, a jury having been waived, judgment was rendered against defendant Blakely for the sum of $635.45. The court found Mrs. Blakely's obligation to be not a continuing guaranty, but allowed her credits only for the sums paid between January 28 and October 1, 1891, and rendered judgment against her alone for $1,500, less these credits, and judgment was rendered by default against Phipps for the balance of the account. Blakely appealed to this court, and both parties have assigned errors.

The first assignment by appellant is that "the court below, having found and decided that the contract of Mrs. Blakely was not a continuing guaranty, erred in holding that the payments made prior to October 1, 1891, by Phipps should be credited on the amount guarantied, but that the other payments, made in October, 1891, should not be credited on the amount guarantied, but should be applied to plaintiff's indebtedness not covered by the guaranty." It is universally conceded that, when the debtor makes a payment to his creditor, it is the right of the debtor to have the payment applied to any of several debts which he may owe his debtor; and, when the debtor does not designate how the payment is to be applied, the creditor may make the appropriation, with this restriction, however, that the creditor must make the appropriation, if not at the time of payment, at least within a reasonable time, and he cannot exercise the right to the wrong or injury of the debtor. But when there are payments made, and neither the debtor nor the creditor applies them to any particular debt, or to any part of the debt, when there is but one debt, there seems to be no inflexible rule for applying the payments, but they must be applied as the justice of the case demands. Taylor v. Coleman, 20 Tex. 772. While there may be a seeming conflict in...