Waterman v. Younger

• Decision Date: 29 February 1872
• Citation: 49 Mo. 413
• Parties: JOHN C. WATERMAN AND JOHN W. LOWELL, Respondents, v. HENRY YOUNGER AND THOMAS E. TOOTLE, Appellants.
• Court: Missouri Supreme Court

49 Mo. 413

JOHN C. WATERMAN AND JOHN W. LOWELL, Respondents,

v.HENRY YOUNGER AND THOMAS E. TOOTLE, Appellants.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Buchanan Circuit Court.

The jury in this case found a verdict for plaintiffs for the amount sued on, and found that plaintiffs were entitled to a lien on defendants' property for the amount.

Woodson, Vinyard & Young, for appellants.

I. Where there has been no special appropriation of the payments made by either party to a running account, they will be applied to the discharge of the items of debt antecedently due, in the order of time in which they stand in the account. (1 Sto. Eq. Jur., § 459 a; 2 Pars. Cont. 633; Clayton's case, 1 Meriv. 572, 604, 608; United States v. Kirkpatrick, 9 Wheat. 737; United States v. Wardell, 5 Mason, 82, 87; Speek v. Commonwealth, 3 Watts & S. 328; Berghaus v. Alter, 9 Watts, 394; Thurlow v. Gilmore, 40 Me. 378; Draffin v. City of Boonville, 8 Mo. 395; City of St. Joseph v. Merlatt, 26 Mo. 233.)

II. No material-man can have a lien on a building, or the ground on which it is situate, for materials used therein, unless he has a contract for furnishing the same, either with the owner or proprietor thereof, or his agent, trustee, contractor, or subcontractor. (Wagn. Stat. 907, § 1; Hause v. Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo. 578.)

III. The creditor, in the absence of directions from the debtor, must make the appropriation of the payment at the time it is paid to him; otherwise the law will make the appropriation, and it will be too late for him to attempt to do so afterward. (Clayton's case, supra;Stone v. Seymour, 15 Wend. 23.) The most liberal authorities that can be invoked by respondents, all require that a creditor making an application of a payment after it is paid in, must do so within a reasonable time thereafter. As to what is a reasonable time is a question for the jury--a thing wholly ignored in the instruction complained of.

Strong & Hedenburg, for respondents.

The application of payments is at the discretion of the payee, except when paid on a particular account, or where the debtor indicates a particular application. (Middleton v. Riley, 21 Mo. 412.) The citation of authorities on this point is unnecessary.

WAGNER, Judge, delivered the opinion of the court.

We see nothing objectionable in the action of the court in reference to its instructions regarding a contract between Younger and Tootle. The evidence shows that Younger did the work, that Tootle recognized him and paid him at different times; and that was sufficient to warrant the jury in finding a contract between the parties. The real contest in the case relates to the appropriation of payments, and upon that question I do not think that the court erred. Younger undertook to do the carpenters' work on a house for Tootle, and the plaintiffs were lumber merchants, and furnished him materials for the same. Younger failed to pay for all the materials, and the plaintiffs filed their lien against the property to secure the payment of the balance. The lien was filed, notice given, and suit brought within the proper time. It seems that Younger was a general contractor, and was building other houses at the same time that he was at work on Tootle's house, and that on the ledger plaintiff kept a general account and charged him with...