Rintels v. Reid

• Decision Date: 31 January 1880
• Citation: 82 N.C. 116
• Court: North Carolina Supreme Court
• Parties: WITTKOWSKY & RINTELS v. S. W. REID.

82 N.C. 116

WITTKOWSKY & RINTELS

v.S. W. REID.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION tried at Fall Term, 1879, of MECKLENBURG Superior Court, before Buxton, J.

Verdict for plaintiffs, judgment, appeal by defendant.

Messrs. Dowd & Walker, for plaintiffs .

Messrs. W. P. Bynum and Jones & Johnston, for defendant :

As to application of money where creditor holds more than one debt, and where payment will affect jurisdiction. Wheeler v. House, 27 Vt., 735; U. S. v. Kirkpatrick, 9 Wheaton, 720. The creditor having once made application cannot afterwards change it without debtor's consent, 7 How., 691; 5 Pet., 69. Express declaration at time of payment as to which debt money is to be applied, is not essential; intention may be proved by previous or subsequent instructions. 2 Chitty on Contracts, 1,112; 74 Ill., 238; 12 N. J. Eq., 233. See also Hawkins v. Long, 74 N. C., 781. Where there are two demands, money will be considered as having been paid in discharge of the one which the amount will satisfy. Caldwell v. Wentworth, 14 N. H., 431. Cannot apply half to each. Wheeler v. House, supra.

DILLARD, J.

The defendant was indebted to the plaintiffs in two small sums by account, and by two bonds, both dated the same day, and each for the sum of two hundred and seventy-five dollars, one falling due at thirty days after date, and the other at forty-five days, and the action was begun in a justice's court on the bond last falling due, to-wit: on the one executed at forty-five days, credited by one hundred and twenty-five dollars endorsed as paid on the 27th of January, 1876. The defence made in the justice's court, and relied upon on appeal in the superior court, was that defendant had paid plaintiffs, at the time of the credit on the bond in suit, the sum of two hundred and fifty dollars and had directed the application thereof to the payment of the open accounts, and the balance as far as it would go, on the bond falling due at thirty days. And it was claimed that instead of applying the sum paid as directed, which would have left only the last bond unpaid, which is for a sum beyond the jurisdiction of a justice's court, the plaintiffs have credited the sum paid in equal parts on the two bonds, and this in effect kept on foot four causes of action against him within a justice's cognizance, two on the accounts and two for the balance on the two bonds.

On the trial in the superior court, His Honor, with a view to have the controverted fact of application settled, framed and submitted to the jury two issues:

1. Did defendant on the morning of the 27th of January, 1876, pay the two hundred and fifty dollars on general account, or did he when he parted with the money reserve the right to make the application in the afternoon? [Ans. Money paid on general account.]

2. If the right was reserved, were any directions given by the defendant to apply the money first in settling the two accounts and the balance to go on one of the notes?

The evidence adduced so far as it is material to understand the point of error assigned in the refusal of His Honor to give one of the special instructions requested by defendant, was, that on the morning of the 27th of January, the defendant went to the store of the plaintiffs and handed the money to the book-keeper of the firm, stating to him at the time to have his papers arranged, and that he would call again that afternoon and arrange the matter. The partner, Rintels, having died, the defendant was not allowed to state the terms of an agreement claimed to have been made with him as to the application of the payment, but was permitted to tell what he told Wittkowsky in relation thereto, and Wittkowsky's reply; and thereupon defendant testified that on the day of the payment of the money he told Wittkowsky that Rintels had agreed with him that the payment should be applied first to the open accounts and then to the note first falling due, and that Wittkowsky replied he preferred to apply the money on general account and to have new notes each for...