The complaint is for meat sold defendant on account and demanded judgment for $154.18. Accompanying the complaint is a verified bill of particulars, filed by plaintiff, which sets out items of the account commencing May 13, 1887, and ending June 21st in the same year, amounting in the aggregate to the sum of $270.74. Commencing with May 31, 1887, and ending on J une 21st, same year, defendant was credited with four items of payments, amounting in the aggregate to $115.56. This sum is in the bill of particulars deducted from the $270.74, leaving a balance, as therein stated, of $154.18. It should be, when correctly subtracted, $155.18. The answer, as ■appears from the statement of the return, was a general denial; but the answer, as returned, not only denies, but alleges a portion of the meat sold to be bad, on account of which no liability arose, also a counter-claim for over-payments. No testimony was offered to show payments beyond such as were ■admitted, and no attempt was made to show any of the meat bad. On the trial it appeared by the testimony of Rudolph Henry that he and his brother composed the firm of Henry Bros.; that such firm was so continued down to and including the 31st day of May, 1887. On June 1st following one Swain became a member of the firm, and so remained during all subsequent dealings between the parties. No formal change was made in the heading of the account kept between the parties hereto after Swain’s entry into the firm. On .said 31st day of May defendant was indebted to plaintiffs upon the account in *506the sum of $97.50, and on that day paid, to apply thereon, $25. Commencing' with June 3, and ending June 21,1887, defendant obtained from time to time-various quantities of meat, aggregating in amount $173.24, the first item of which amounted to $40.04; and he thereafter paid, according to the testimony of plaintiff, $90.56, and, according to the testimony of defendant, $80.56. This was the status of the accounts when this action was brought. Plaintiff testified upon the trial to the sales of the meat, the payment of the $25 and1 also the subsequent sums, and says: “At the time he paid these last payments-he owed me for the [first] items above stated. I don’t know whether I ever told Dietrich that Swain had come in. The only payments he ever paid before Swain went into copartnership was $25. He owes plaintiff a balance off $72.50. Cross-Examined. I made up the $72.50 by adding up the items before read,—$97.50,—and deducting $25.” The defendant testified that hele new nothing about Swain’s being a partner until the trial; that he made all the payments upon the whole account, and had no talk as to what account they should be applied on; and that he owed no money for meats bought since the 31st of May, when he made the payment of June 3d, of $15.56. Cross-Examined. “At that .time, May 31st, I paid $25 on this account, and owed the balance,—$72.50. . I had nothing more until June 3d. Then they struck a new account. What I paid on June 3d—$15.56—was on the new account. Redirect. I continued right on as I began. They never told me any different. I knew of no new'account. I kept it in one account.” The plaintiff then gave evidence of the meats sold after the formation of the new firm ashereinbefore stated. With an exception, to be hereafter noted, this constitutes all the evidence. The claim is now made that this action cannot be-maintained, for the reason that it clearly appears that the payments made-should have been and were applied upon the earlier items of the account, and-that they W'ere more than sufficient to extinguish them; that, if á right of action exists, it is in favor of the members constituting the new firm. The-doctrine respecting the application of payments is reasonably well settled. A debtor has the right, when making a payment, to dictate, when there are separate accounts, upon which account the money so paid shall be applied. If,, however, he omits to make such direction, but pays generally, the creditor may apply it, as he wills. Bank v. Bigler, 83 N. Y. 63, 64. If, however,, neither party makes the application, the law will apply it in accordance with the justice of the case. Bank v. Webb, 94 N. Y. 472. We are of opinion, upon the facts in this case, that the court below correctly applied the payments.
Plaintiffs were not concluded by the demand of their complaint, or upon the proceedings, by the statement in the bill of particulars. If in strictness they w'ere bound by the latter, yet the parties appeared and litigated the question upon a claim that defendant was only indebted to plaintiffs in the sum due the old firm, and no objection to the evidence or suggestion was-made of any variance between such position and the statement of the bill, but. the evidence was all received and submitted to the judge for his determination. Upon the evidence it was quite competent for him to find that not only was it the intention of plaintiff to apply the payments upon the sales made by the new firm, as testified to by him, but he was authorized to find that defendant knew and so understood it, as defendant stated in terms that the first payment made after the formation of the new firm was made to apply upon the new account, which could only have been the account of the new firm. It is true that upon his re-examination he stated that he knew of but one account, and no new one at all; but this simply presented conflicting statements upon the same subject, and it was clearly within the province of the court to say which statement it would credit. In addition to this, the court was also authorized to find from the testimony of defendant that in any event there was something due plaintiffs from defendant. The claim of plaintiffs is *507$72.50 and interest. The whole amount of payments credited by plaintiff to defendant, less the first $25,- is $90.56,—as stated by defendant, $80.56. As already stated, the first of these items is $40.04, paid for a bill of meat purchased June 3d, as to which defendant testified: “I paid for the purchase of June 3d, $40.04 in cash.” This was clearly for the item due the new firm, and, if paid as stated, reduced the aggregate of payments to $50.56, leaving .due $21.94 upon plaintiffs’ account, for which they would be clearly entitled to judgment. But, aside from this, we think that it satisfactorily appears that the meats sold by the new firm, upon which payments were made, were their property, for which they were entitled to pay, and that no injustice is done in so applying them. On the contrary, we think the court was authorized to find from the evidence and the circumstances that it was equitable so to do. Thurber v. Mclntire, 9 N. Y. St. Rep. 816. We have no hesitancy in arriving at this result, for the reason that upon the trial no evidence was given or claim made but that defendant was indebted for all the meat sold, less payments. The judgment is therefore affirmed, with costs.
Titus, J., concurs.