Madera Sugar Pine Co. v. Adams

FINCH, P. J.

Plaintiff sued to foreclose its lien for the value of materials furnished for and used in the construction of certain buildings upon town lots belonging to defendant D. P. Adams. It was given judgment against Adams in the sum of $751.71, which was $1,000 less than the amount claimed to be due, and plaintiff prosecutes this appeal from the judgment.

Munson constructed the buildings in question under an oral contract with Adams and was paid the full contract price therefor before plaintiff’s notice of lien was filed. At different times as needed, from July 6 to October 9, 1922, plaintiff sold Munson materials for and which were used in the construction of the buildings of the total value of $1,751.71. Munson had buildings under construction for four other persons during the same time that he was carrying out the Adams contract and purchased materials for all of them from plaintiff. Plaintiff entered all charges for materials in a single general account with Munson, designating therein the particular job for which each item was furnished. Payments made by Munson were credited to his account generally, without applying the same to any particular item or to charges for material furnished for any particular job. Munson deposited the moneys received under all his contracts in one general bank account and drew thereon in payment of bills incurred on any job, regardless of the source from which the moneys then on deposit were received.

The evidence does not show when or in what amounts the plaintiff furnished materials for buildings other than those of Adams, or whether such materials were furnished prior or subsequent to the time that the greater part of the materials for the Adams buildings were furnished. The evi

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dence shows that Munson was indebted to plaintiff prior to the furnishing of any material for the Adams job, but it does not appear in what amount or whether such indebtedness was subsequently paid prior to the particular payments hereinafter mentioned. In the latter part of July Munson was indebted to plaintiff in the sum of about $3,000, more than $1,000 of which was for materials used on the Adams job, and plaintiff requested Munson to reduce the amount of such indebtedness. The latter replied that he could probably pay something in a few days. On the first day of August Adams paid Munson something over $500 on the contract and thereafter, on the same day, Munson paid plaintiff on account the sum of $500, without stating the source from which the money was derived. Adams paid Munson an additional sum of $500 on August 23d and thereafter, on that day, Munson made plaintiff an additional payment of $500 on account. Neither Munson nor the plaintiff applied either payment to the extinction of any particular item or items of the account, and the question to be determined is the proper application of such payments.