Wendt v. Ross
Before: Bhodes
Synopsis
Action fob Monet Had and Received.—Where the complaint charges that A., being indebted to plaintiff in a sum of money, it was agreed between A., plaintiff, and defendant, that A. should pay the same to defendant, who should pay the same to plaintiff on the request of plaintiff, that thereafter A. paid to defendant said sum in the gold coin of the United States, to and for the use and benefit of plaintiff, that defendant refused to pay the same to plaintiff upon said request duly made ; an action to recover said sum in said coin is an action for money had and * received, and therein the defendant is not charged, nor, upon said facts, chargeable as a bailee.
Defect in Pleading, when Waived.—The objection for a nonjoinder of all the proper parties as plaintiffs, where the defect does not appear upon the face of the complaint, must be taken by answer, else the objection will be deemed waived. Conflict of Evidence.—Where the evidence is conflicting upon any of the issues of fact, this Court will not be warranted in disturbing the verdict of a jury or other decision upon such issues.
Judgment fob Hold Coin.—Where, in an action for money had and received, it appeared that defendant received the sums demanded in gold coin and gold dust, all of which he entered in his account book as cash,” a verdict for plaintiff for said sum “ in gold coin ” will not be set aside as contrary to the evidence. Application of Payments.—Where money is paid generally, upon an account composed of different items, made at divers dates, and no appropriation thereof is made by either party to any particular part of the account, the rule is that the payment shall be applied to the charges in the order of time in which they are made.
Idem.—Where payments are made generally to a party having two accounts against the party paying—one due to himself, the other to a third party, for whom he was acting as agent-—and no appropriation of such payments to either account is made by either party, the rule is that said payments will be applied ratably to both accounts.
Idem.—The debtor may, at or before the time of payment, direct the application of the payment, and if the creditor receives the money he is bound by the direction. If the debtor omits to make such application, the creditor may, generally, apply the payment to any debt he chooses, but when so made he cannot, without the consent of the debtor, change such application.
By the Court, Bhodes, J.: This is an action for money had and received. The defendant is not charged, nor is he upon the facts of the case chargeable as a bailee.
The objection, that all the persons who were interested in the purchase money for the mining claim should have been joined as plaintiffs, is deemed to have been waived because of the failure to take the objection by answer, the matter not appearing upon the face of the complaint. (Practice Act, Sec. 45.) In respect to the receipt of the money by the defendant for the use of the plaintiff, and the demand of the same from the defendant by the plaintiff, the evidence is conflicting, and we are not warranted in saying that those facts were not sustained by the evidence.
The verdict for gold coin appears to be proper. The purchasers of the mining claim paid the defendant on his account (which included among other items the charge for the purchase money for the claim), in gold coin and dust, all of which he entered in his book as “ cash.” The account was introduced in evidence by the defendant, and that showed a charge by the defendant against the purchaser of the claim of “ cash ” paid to the plaintiff, and the only cash mentioned in the testimony being gold coin, the jury might well find for the plaintiff in that kind of money.
The instructions to which our attention is directed involve some of the rules relating to the application of payments. When the defendant charged to the purchasers of the min[657]ing claim, in his account with them, the amount they then owed on the claim, that sum became, as between him and them, a mere item in his account, which was then an open current account. The rule as to the application of the payments, of which no appropriation has been made by either party, but which are paid generally upon the account, is that the payments shall be applied, as they are made, to the charges in the order of time in which they accrue. Under this rule, the amount due for the purchase money was paid long before this account was commenced. It would, perhaps, be nearer the true facts of the case to consider that the charge of this item in the defendant’s account was made merely for the purpose of hastening the payment by the purchasers, and that the amount remained due to the plaintiff—the defendant acting in respect to it merely as the agent of the plaintiff.. In such case general payments will be applied ratably to the debts of both the plaintiff and the defendant; and under that process the balance of the purchase money remaining unpaid by the purchasers would be reduced to a very trifling sum.
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