delivered the opinion of the court,
The fourth point of the plaintiff below, the affirmance of which forms the subject of complaint in the first assignment, is correct, and as an abstract proposition there was no error in affirming it. It is well settled that when a payment is made on an open account composed of various items of different dates, and no specific application is made at the time by either debtor or creditor, the law will appropriate it to the oldest items of the account. It is the right *141of the debtor in the first place, when he makes a payment, to direct how it shall be applied. If he waives his right, the creditor may make the application; but if neither of them exercises the privilege, the law, as a general rule, will' appropriate the payment to the oldest items in their order as above stated. While the principle thus recognised is undoubtedly correct, it was erroneously applied in this case. The plaintiff in error claimed deductions for bad workmanship and materials, embracing the earlier as well as the later items, especially the former, but the court excluded the claim as to all the earlier items of the account, so far as they were covered by payments made and applied under the general rule of law above stated, and instructed the jury, as complained of in the second specification, “that there could be no deduction for bad workmanship or materials upon any of the rolls or items thus paid for.” In this there was error. If the defendant was able to prove bad workmanship or defective materials in any of the articles embraced in the earlier items of the account, entitling him to a deduction from the price charged therefor, he had as much right to the benefit of such deduction as he would have had if the general payments made on account had not been sufficient to cover those items. In other words, he was not precluded by reason of the general payments from showing bad workmanship and defective materials as to any items of the account, and claiming reasonable deductions therefor. The third assignment involves a repetition of the same error. In affirming the plaintiff’s point, the jury were instructed that if the defendant was entitled to any deduction from the claims of the plaintiff, on account of bad workmanship, he was restricted to the later items of the account not covered by the general payments.
Judgment reversed, and a venire facias de novo awarded.