Frazer v. Miller

<p>APPLICATION OF PAl'MENTS— EVIDENCE — INSTRUCTIONS.</p> <p>Iii an action against co-partners, after the dissolution of partnership, to recover upon an account for services, where the evidence h£S shown that the business was continued by one of the partners, who assumed the firm indebtedness, and that the plaintiff had continued in the service thereafter, receiving payments of money from time to time, evidence is admissible that plaintiff had instituted a suit, which was afterwards dismissed, upon a balance of account against the partner continuing the business alone, for the purpose of showing that the plaintiff had made application of the payments to the partnership account.</p> <p>Where the record shows that the papers in such former suit were offered in evidence for the purpose of showing plaintiff’s application of the payments made, and were excluded by the court on the ground that they were immaterial and irrelevant, there is sufficient testimony'in the record for the court to take cognizance of the error alleged in rejecting such testimony. (Dunbar, C. J., and Anders, J., dissent.)</p> <p>In such case, where the theory of the retiring partner is that the plaintiff took from the partner continuing the business a due bill whereby he accepted the latter as his debtor for the demand, it is not error for the court to instruct the jury that “if a creditor takes a due bill, or anything of the kind, and agrees to release any other claim and looks to such due bill, he is bound by it and must stand to it.”</p> <p>Upon the question of the application of payments it is not error for the court to charge the jury: “ You are instructed that the law applicable to this proposition is that, if there be debts due from a person and he pays money to his creditor, the debtor has a right to have the payment applied to which debt he pleases. Rut he must make the application at the time he makes the payment, and he cannot make it afterward. If no specific application be made by the debtor at the time of payment, then this right of application is the creditor’s, and he may make it as he may prefer, and at anytime before’an account is settled between them or before action is brought; and, if neither creditor or debtor applies it specially, then the law will apply or credit it to the oldest aeeouut,”</p>