The opinion of the court was delivered by
Williams, Ch. J.The account of the plaintiffs against the de*474fendants was adjusted and settled by the auditor at three dollars and fifty two cents. The only dispute arises from the charge of five dollars, made by the defendants against the plaintiffs, as stated in the report of the auditor ; — and we think the defendants had no claim for this sum, to be allowed in this action. When the money was received by the plaintiffs, it was received for the benefit of the defendants. The most natural and obvious appropriation of it was in extinguishment of so much of the note, which the plaintiffs then held against Caleb and Augustus Hobart. Until called for in some way by the defendants, or some neglect or refusal of the plaintiffs, no action could be sustained therefor by the defendants.
It appears that the plaintiffs gave directions to their attorney to have the money so applied, before the commencement of this suit, but, through the neglect of their attorney, this was not done until after. The defendants paid the balance of their note, and thereby ratified this appropriation, and received the benefit of it; and they, in fact, received this very sum of five dollars, when they paid the balance of the note and took up the same; and this was before the account was audited. The defendants, therefore, at the time the account was audited, had no claim whatever on the plaintiffs for this sum. The argument, which has been had in relation to the appropriation of'payments made, is not applicable to the case before us. We can see no ground for the defendants to recover this sum of five dollars.
The judgment of the county court must therefore be reversed, and judgment is rendered for the plaintiffs to recover the sum of three dollars and fifty two cents, found due by the auditor, and the interest on the principal sum of three dollars and twenty six cents to this date.