¶1dissenting. The plaintiffs had an account against Brewer & Lothrop, and one against Brewer. The defendant Brewer gave his note to the plaintiffs, for which they gave him a receipt in the following words: “ Lewiston, October 22, 1875. Received from F. S. Brewer his ninety day note for three hundred dollars, to be paid at either bank in Portland. Geo. A. Hunt & Oo. Starbird.”
¶2This receipt is undoubtedly open to explanation, but unexplained it has in and of itself an obvious meaning. It is a receipt from the plaintiffs to the defendant Brewer alone. On its face the plaintiffs are to account for its amount to the defendant *265Brewer, and to no one else. It being Brewer’s individual note, the payment, presumptively, is to be made from his funds, and he alone has the right to call upon the plaintiffs to account for the amount paid.
¶3The fact that Brewer may be indebted as a member of the firm of Brewer & Lothrop, as well as on his own account, does not alter or change the natural meaning of the language. If Brewer had been indebted only as an individual, no one would hesitate as to the meaning of the words. But the prima facie meaning of the words must be the same, whether Brewer owed individually or as a member of one or more firms.
¶4In Livermore v. Claridge, 33 Maine, 428, 429, Shepley, J., uses this language: “ When a payment is made by one wbo is under a several and also under a joint liability to the same party, and the money is not shown to have been derived from the fund from which the joint liability was to be met, the law applies it to discharge the several liability, as being the appropriation most favorable to the creditor.” The note being that of Brewer, the presumption is that it was to be and was paid from his funds, in the absence of any proof to the contrary.
¶5The instruction given was “ that the receipt for the note does not show upon the face of it whether the note was or was not given in discharge of the joint indebtedness of Brewer & Lothrop, or the individual indebtedness of Brewer alone. It shows from whom it was received, but not upon which of two accounts it was to be applied.”
¶6The receipt contains no reference to Brewer & Lothrop. It does not purport to affect them or their interests. The question is as to the meaning of the receipt itself, without reference to anything outside its words. The court erred in the construction of the receipt. It on its face relates only to dealings between the parties to it and can only be construed by its own terms; and they have no relation to the firm of Brewer & Lothrop.
¶7It is urged that proper instructions were given as to the law of appropriation of payment. Assuming them to have been so given, that does not change the effect of the instruction of which complaint is made.
¶8*266The law of appropriation depends upon the facts to which it is to be applied. The primary inquiry is what are the facts. The complaint is that the jury were erroneously instructed as to the facts to which the law of appropriation applied. However correctly the law of appropriation might have been stated, if an erroneous ruling was given as to the facts or" the prima facie construction and effect of an instrument, then the very basis of appropriation would or might be erroneous.
¶9The fact to be determined was, to whom and for what purpose the receipt in evidence was given, and what did it mean. The plaintiffs had claims against -Brewer, and Brewer & Lothrop. If a receipt of a note or a sum of money from the plaintiffs to Brewer means the same thing as a receipt from the plaintiffs to Brewer & Lothrop, if an entry to E. S. Brewer means the same thing as one to Brewer & Lothrop, then the ruling was right; but if a receipt from the plaintiffs to Brewer & Lothrop differs from a receipt from the plaintiffs to Brewer, then the ruling was erroneous. The importance of this ruling consists in this, that it negatives the prima facie presumption that it was a receipt between the parties thereto and not a receipt between other parties. The defendant was entitled to this presumption in the ascertainment of the facts, and the ruling that he was not so entitled was clearly wrong.
¶10Evidence may undoubtedly be received to explain the meaning of a receipt; but the question is not as to the reception of evidence, but as to the construction of certain language in the absence of all evidence affecting its' meaning.
¶11The instructions given other than those to which exceptions are alleged are not reported. What they were must be matter of conjecture. Our action must be based entirely on what is before us, not upon what may or may not have been. The instructions given were clearly erroneous, and the exceptions should be sustained.