delivered the opinion of the court upon petition for a rehearing :
After the alleged retraxit the action stood on the note and acceptance. The plea was payment and unquestionably the burden was upon the defendant to prove it. The plaintiff was entitled to judgment for so much as there was no proof of payment. Roche distinctly says that the Hunter draft of $823.91, and other payments made by Broward, were in fact applied to the store account against Broward, and that none of them were in fact applied to either the note or acceptance, except the balance of $11.66 which he says he applied to the note. The store account outside of the note and acceptance was $1,015.25, the note $130, and the acceptance, $204.41. The refereee holds that as the payments up to and including that of $823.91, (the Hunter drait) made August 13th, 1880, exceeded all the then existing indebtedness of Broward to Roche, and that the note was a part of such indebtedness, that they operated in law as a payment of the note. The referee thus practically denies Roche’s claim to withhold any of the funds from the then existing indebtedness, for application to future purchases on the open account. But he finds, in accordance *483with Roche’s testimony, that the Broward acceptance was not given till after all the payments had been made. This finding is also sustained by the date of the acceptance, May 24th, 1881. The amount of the account, deducting both the note and acceptance, was $11.66 less than all the payments, they amounting to $1,026.91; but assuming the note to have béen satisfied in law as was held by the referee, there remained a balance .of $118.34 unpaid on the account, with nothing in R.’s hands to apply to the acceptance when he should receive it, and of course with not even the $11.66 balance which he attempted to apply to the note.
The proposition of counsel that the propriety of the finding of the referee that Broward owed Roche the exact amount of the principal and interest represented by the acceptance “ depends upon the fact and cannot be made out in the absence of the fact that the purchases made of the plaintiff by the defendant subsequently to the plaintiff’s receipt of the $823.91 represented precisely this balance,” (i. e., the balance remaining in R.’s hands after the payment-in August, 1880, of the $823.91,) “and no more,” is to our minds wholly untenable. It is shown that the accruing store account not only absorbed the balance remaining in R.’s hands to B.’s credit after the payment of the $823.91, but that it ran on and absorbed the other payments after-wards made by B., the last of which B. says was made as late as April 15th, 1881. Roche distinctly says that the payments were applied ^to the store account, and we find that its last item is April 1st, 1881. Had there not been the “ retraxit ” as to the open account, the referee, believing, as he evidently did, Roche’s statements, for no other theory is consistent with his findings, must have given judgment for not only the accceptance, but the balance of the open account also. It was not necessary that there should be no balance remaining due on the store-account to authorize a *484recovery on the acceptance. Had there moreover, on the other hand, have remained in Roche’s hands, when he received the acceptance, a balance over and above the store account, such balance would have gone in full or partial payment of the acceptance, according to the amount of such balance.
The finding of the referee on the acceptance necessarily involves the conclusion that he was satisfied that the balance to Broward’s credit in August and all other future payments were absorbed by future purchases in the open account, for otherwise he could not have found for the plaintiff without entirely repudiating the theory on which he found the note had been paid. We see no error in our former conclusions.
Petition for a rehearing is denied.