On Motion for Rehearing,
Among other things, it is insisted with force that, even if appellee’s credit rating was $750 instead of $250, as appellant sought to show, appellant was nevertheless entitled to a judgment against appellee for a balance of $389.93 still due and unpaid after applying in appellee’s favor all payments and earned commissions. This contention is based on the argument that appellee was not entitled to receive any benefit from the payment of $589.46 on the total credit of $1,405.12, which the facts show that appellee extended to the Blue Jay Service Station. This contention was not pressed upon us on original presentation of this, case, and we hence stated in our original opinion that “the briefs of both parties, seemingly at least,” assumed that, if the analysis sheet of December 8th was authorized, the judgment of the court below was correct. In other words, we then assumed, without discussion, that the total indebtedness of the Blue Jay Service Station, after deducting the $589.46 payment, was less than the authorized credit found by the jury, and hence that no personal liability rested on appellee. This conclusion, as it seems to us, necessarily follows, unless, as appellant contends, it had and exercised the right of an election to apply the credit payment so as to exclude appellee from any benefit by reason thereof. The payment, however, was applied to the whole indebtedness without anything in the evidence tending to show that at the time of the payment it was applied to any specific part of the whole, and we accordingly are of the opinion that the principle of election has no application.
We yet retain the view that the evidence is sufficient to support the verdict of the jury on the issue of appellee’s authorized credit, and think the motion for rehearing, as a whole, should be overruled. It is accordingly so ordered.