Kissam v. Burrall

By the Court.

(Dyer, J., absent.) The only question in law, made by tbe counsel, respects tbe mode of computing interest, there having been a number of payments at different times:— But tbe declaration counts upon a bond given for tbe payment of £1,950 New York money; and it does not appear by tbe declaration, or pleadings, tbat tbe bond bad any condition annexed, or tbat tbe obligation was on interest; and it appears tbat the payments exceed the sum of tbe obligation; — therefore, on tbat principle alone, tbe evidence, as stated, was sufficient to prove tbe issue.

*338But there was, in fact, a condition annexed to the bond, for the payment of half the sum mentioned in the obligation, with lawful interest, by a day certain. This brings up the question in dispute between the parties; and the determination depends upon the application of the payments. If the payments bad been applied to the interest due at the time they were made, and only the sinplus to the principal, there would have remained a considerable sum due to the plaintiffs; but if all the payments had been applied to the principal, until that was fully discharged, and the residue to the interest, the debt would have been overpaid. It is a settled rule of law, that he who pays money has a right to direct the application, if there are several duties to which it may be applied; but if he neglects to do it, the receiver may make his election. In this case, there does not appear to have been any particular application made by either party, but the sums paid were simply indorsed on the bond.— Therefore, the intention of the parties must be inferred from the common custom of the place where the contract and payments were made, and their own conduct respecting the matter:— 'This.being transacted in the city of New York, must be .•governed by the laws and customs of that state; and according to what appears from the evidence to have been the •custom of computing interest in New York, the bond is overpaid. But as the parties might have agreed to apply some of the payments to the interest due at the time they were made, Before the principal was fully paid, it is presumed to be the ■case; for it was both equitable and legal.- — • On these principles, and from the length of time since the money became •due, arises a strong presumption, that there hath been a *339settlement of tbe matter in demand agreeably to tbe minds of tbe parties.

Judgment was, therefore, affirmed.