Shortridge v. Pardee

• Decision Date: 06 June 1876
• Parties: ALFRED L. SHORTRIDGE, Defendant in Error, v. LEMUEL G. PARDEE, Plaintiff in Error.
• Court: Missouri Court of Appeals

2 Mo.App. 363

ALFRED L. SHORTRIDGE, Defendant in Error,

v.LEMUEL G. PARDEE, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1876.

1. Where the debtor does not direct the application of a payment, the creditor may apply it as he thinks proper, provided such application is not inequitable. He is not bound to apply it in the way most beneficial to the debtor.

2. This application of payment may be made by the debtor at any time before suit, where the debtor made no application at the time of the payment.

ERROR to St. Louis Circuit Court.

Affirmed.

W. F. Rogers, for appellant, cited: Benny v. Rhodes, 18 Mo. 147; Droffin v. Booneville, 8 Mo. 395; Chaney v. Richardson, 34 Mo. 370; Heitz v. Cohen et al., 29 Ill. 313; 1 Scam. (Ill.) 196; 36 Ala. 482; United States v. Kirk-patrick, 9 Wheat. 737; United States v. Wardell, 5 Mason, 82; Stamford Bank v. Benedict, 15 Conn. 437; Stone v. Sey-more et al., 15 Wend. 19; Briggs v. Williamson, 2 Vt. 283; New March v. Clay, 14 East, 239; Manyette v. White, 2 Stark. 101.

L. Babcock, for respondent.

BAKEWELL, J., delivered the opinion of the court.

This is a suit on a negotiable promissory note, dated June 8, 1872, payable to the order of plaintiff two years after date, for $500, with interest from date at 10 per cent. The note is signed by M. C. McMelan and the defendant.

The answer of defendant sets up that he signed the note for the accommodation of McMelan; that the note was executed by McMelan as principal, and defendant as surety; and that, before the maturity of the note, the same was paid by McMelan, who, in August, 1873, paid to plaintiff $1,000, which was received by plaintiff on the understanding and agreement that he would apply that sum first to the payment of the note sued on, and then credit the remainder upon another note made by McMelan, secured by deed of trust, and owned by plaintiff.

Plaintiff filed a replication denying all these allegations of the answer.

There was a verdict and judgment for plaintiff, and, defendant having filed a motion for a new trial, which was overruled, the cause is brought here by writ of error.

On the trial it appeared that, at the date of the execution of the note sued on, plaintiff held two other notes made by McMelan, and both secured by deed of trust, one dated March 1, 1872, for $3,000, payable four years after date, with interest at 8 per cent., and one dated May 1, 1872, for $1,000, at three years, with interest at 10 per cent.; that Pardee signed the note sued on for the accommodation of McMelan, and that McMelan paid Pardee $1,000 on September 17, 1872.

McMelan swears that this money was paid on the terms set forth in the answer, but plaintiff, Shortridge, swears that there was nothing whatever agreed, at any time, as to the application of the payments, and nothing said about the matter at the date of the payment, and that he afterwards told McMelan that he should apply this payment of $1,000 as a credit on the $3,000 note. Defendant asked the court to instruct the jury that “if the jury believe from the evidence that prior to the execution of the note sued on, that McMelan had executed other notes to plaintiff, for the sum of $4,000, secured by deeds of trust, which have not matured, and that, after the execution of the note sued on, and before the maturity of same, the said McMelan paid plaintiff the sum of $1,000, it was the duty of plaintiff to apply so much of said money as was necessary to the payment of said note sued on, unless the jury further believe that there was an express contract, at the time of said payment, that said money so paid should be applied to the payment of the notes secured by deeds of trust which have not yet matured.”

Defendant also asked the following instruction:

“If the jury believe from the evidence that defendant, Pardee, signed the note sued upon as security, then said defendant was entitled to notice and protest, and unless the jury believe from the evidence that said note was protested for non-payment, or that the defendant, Pardee, waived the same, then plaintiff cannot recover,...