Wilson & Herr v. Hayward

OPINION ON PETITION FOR REHEARING .'

The subject of payment of the mortgage notes, held by Wilson and Herr, on which judgement of foreclosure was had, was not presented to us in argument, but considered, as abandoned and so treated in the opinion delivered by the Court. The Counsel for complainant, has explained this omission by saying that a reference was had to the *208master in the Court below, to ascertain this fact, and under the impression that the case would go back and this subject be thereby ascertained, he did not think proper to discuss it here. Inasmuch as the unexpected turn which the case has taken, cut him off from this resource, and inasmuch as the point of payment, was in his consideration, vital to his client’s case, the Court on his application granted a rehearing, which has been had and we now proceed after due deliberation, to give the conclusion to which we have arrived, premising that nothing has been wanting to present the case which the zeal and industry of Counsel could effect.

No doubt if payment was made of these notes, before judgement, the right of complainant to'relief is clear and unquestionable. He alleges payment in general terms, without specifying particulars, or items, or sayings when, or how, or by whom payment was made. Pie calls upon defendants to state whether any and what payments were made by said West, on account of said debt and howmuch was due thereon at the time of foreclosure, and that a full statement be made and exhibited, showing the amount of said debt and all payments made thereon, and securities realized and its true condition.” To this, defendants answer that “ no payments were made under said debt, and the whole amount was due at the date of said foreclosure, and they exhibited a full and perfect statement taken from the books of the firm of Wilson and Herr, showing the bill of goods at various times, sold to said West by said firm, and the payments made thereon, to which they refer as a true and accurate exhibit of their business and dealings with said West.”

*209This exhibit presents three different accounts, the first for $2027.89, dated 13th November, 1839. The second for $2723.49, dated the 16th September, 1840, secured by three notes of Lunn of $1000 each. The third for $2336.26, dated June the 25th, 1841, making an aggregate of $7088.14.

To the account of November, 1839, are attached two credits, one of $1366, dated 27 August, 1840, and another of $661.43, of the date of 30 January, 1841,—to the two accounts of 1840 and 1841, is attached a credit of $243.

Complainant claims that the credits of $661, $1366 and $243, should be applied to the second acct of 1840, secured by the mortgage, and that there are other payments also applicable to it, to wit: $1652, paid by Thompson and Hagner ; $1000 paid in bills of the Life Insurance and Union Bank, and $1000 in a draft by E. M. West and A. K. Allison for cotton.

The credits of $1366 and $661, it is said should be applied to the draft of $2723, or in other words be applied to the mortgage notes.

The reliance for this position is upon the alleged admission of defendants in their answer, “ that the draft of $2723.49, was the amount in which West stood indebted for goods, furnished previous to that time.” The inference drawn from this is that West owed at this time, 16 September, 1840, the sum of $2723.49, and nothing more.— We cannot consent to such construction. If the sentence stood alone and by itself unconnected with others, it might pos.'ibly admit this construction. In connection^ however, with and in express reference to this very subject, the defendants give a copy of an account of previous *210date, 13th November, 1839, in which there is an indebtedness of $2027.89, closed by these very payments. The accounts and these very credits then constitute as much a part of the answer as the expressions cited, and to com strue them as contened for, would be to exclude a material and important part of their statement, and be doing the utmost violence to the clear and manifest intent of defendants, as declared in their answers. R. K. West had no such opinion. He is particularly questioned as to these items and this account, and says, “he does not know whether the charges are correct or not. The credits he knows are not. The payments therein credited, are not the only payments ever made by me, on account of my indebtedness to Wilson and Herr.”

Here the objection is not to the credits made, but to the want of some which he thinks ought to have been made. It is not a little singular that if this account of 1839s showing indebtedness previous to the draft is excluded, there is no other evidence in the record as to their payment. We are of opinion then that there is no ground for contending that these items should be applied differently to what they have been by defendants.

The next sum claimed, is a payment by Thompson and Hagner to D. C. Wilson, made on the 7th and 10th days of August, 1840. The credit of $1366, bears date of the 20th August, predicated on a part note of the Union Bank, dated 10 of August, 1840, so that the inference seems a fair one, that these relate to the same transaction. There is no other money shown to have been received about that time. Had the whole sum of $1652 been credited, little doubt could remain. We, however, think it the same *211transaction, excepting that the entire sum received by Wilson, was not remitted. The sum of $286 not forwarded to Wilson and Herr, nor credited in any other account, will then form a just credit upon the acct. of $2723.49, at that time the oldest account unsettled.

The next claim is a sum of $1000, paid 26 January, 18-42, through cotton of E. M. West, and a draft of A. K. Allison. There is no question as to this sum of money being received by D. C. Wilson, the only question is whether if was for his own individual account, or for the account of Wilson and Herr. For anything appearing in the record, the latter seems never to have had anything to do with this transaction, nor to have been informed of it even.—Wilson claims it as an individual transaction of his own, and files a statement of the manner of its adjustment, showing the draft of Allison and the notes and account of his firm with which it was paid. In a transaction of this kind, where a party was indebted to an agent in his individual right, jointly with a debt to another concern, prudence would seem to require that the debtor would specify distinctly the debt to which payment should be made, that he should take a receipt and close the transaction by taking up the note or debt paid. Nothing of the kind takes place here. West does not even say that he directed the application of this payment to the Lunn notes, or to the Wilson and Herr debt. His statement in his deposition is “the notes given as collateral security have been paid, $1000 in cash, and in the draft of Allison for $1000 more.” Again he says: “I did pay it, I paid it to Wilson, (the draft of $2723.49,) I gave Wilson an order on L. A. Thompson for $ , and the balance I paid in current money of the country.”

*212Now, if there were nothing else in the case but this statement of West, we should feel bound to disregard it in oppositinn to the denial of the answer. It is true this does not deny this payment in so many words, but makes a denial as large as the allegation of the bill. The bill charges payment of the mortgage notes. The answer denies it.— But there is other evidence. E. M. West examined by complainant, in his deposition says : “ in the early part of 1842,1 sold to D. C. Wilson cotton to the amount of $1500 I drew an order on D. G. Wilson in favor of A. K. Allison" for the sum of $1000, with the. understanding that Allison, was to transfer said draft back to said Wilson, for and on account of R. K. West.” Questioned as'to the application of the payment he says: “ The draft was to be applied to the general account of R. K. West with said Wilson, or such was my impression.”

Now, E. M. West seems to have been the chief and active agent in the transaction, and his evidence as to the application of the draft to a particular subject, is more to be relied upon and greatly preferred to a general allegation of another witness, that the note was paid. We have remarked upon the importance of receipts being taken in a case of this kind, to identify the debt which the debtor designed paying, for obviously in the present case if West paid Wilson $1000, without an agreement or direction to apply it to the debt of Wilson and Herr, Wilson would have a right to apply it to a debt of his own; (as far as this case, is concerned, we say he had a right to do it, for . they do not claim the payment to themselves,) hence the necessity of a receipt. R. K. West says, speaking ofthis payment, “he has no receipts in his possession.” Yet, E. M. *213West in his deposition says: “111 ave seen receipts of D. C. Wilson to and in the possession of R. K. West. I have seen them within the last twelve months. I have no recollection of the amount of any of them. I don’t know where they are at this time. They were receipts for so much money without specifying on what account.”

We find too in the record a receipt for $1000 in the Life In. & Trust Ob. and Union Bank Bills, the subject of another claim, specially applicable to this draft. Under these facts we are fully justified in holding that this sum was paid, not to Wilson and Herr as claimed, but to the private and individual account of David C. Wilson, and that R. K. West had no receipt for it as a payment on the draft of $2723.49.

The claim of $1000 paid October, 1841, is sustained by the receipt of David C. Wilson, applying it to this draft and is not contested, although we are constrained to say the evidence is very strong that it was designed to be applied to the account of June 25, 1841. Daffin and E. M. West, in their depositions, both speak this way, and this was the decided impression of D. C. Wilson.

The item of $243 .is put to both the accounts of 1840 and 1841. It will be allowed to the oldest account, the one secured by the mortgage notes.

The payments allowed on the draft of $2723.49, are $1000, October 23, 1841; $218 January 4, 1842, and $243 June, 1842. Giving credit for these with interest, and deducting this amount from the sum due on the draft writh interest to the date of the judgement, and there remains the sum of sixteen hundred and seventy-one dollars due, which defendants Wilson and Herr, have the right *214in equity to have paid before the interests of Hayward ean intervene, according to the decision and opinion we have made. We are then of opinion that the complainant has not made out or sustained his position, that the debt due and secured by the mortgage was paid and satisfied before the judgement of foreclosure was rendered.

The decree made herein on a former day of the term, will then stand and remain as the final decree of this. Court, and the petition of complainant will be dismissed.