Wetherell v. Joy , 40 Me. 325 ( 1885 )

Appleton, J.

The defendant, on April 18, 1853, gave Walter E. Douglass a letter of credit, in which he “agreed to guarantee the payments of such goods to the amount of four hundred dollars” as he might purchase. In this he further required, that the person accepting his guarantee should notify him of the amount sold, the time when the same should be payable, and of the receipt and possession of the letter creating the guarantee.

Walter E. Douglass purchased goods, to the amount of $450,13, of the plaintiffs, who, on April 24, advised the defendant of the receipt and possession of his letter, of the amount sold Douglass, and that the sale was o.n credit of six months, and then add, “ we shall look to you for payment; if you have any objections to the amount that exceeds four hundred dollars, please answer per return mail.”

The defendant returned no answer to this letter, but it is not contended such neglect to answer rendered him liable for the amount exceeding the sum specified in his letter of April 18.

The receipts of the plaintiffs show, that three hundred dollars have been paid in discharge of the debt guaranteed.

The contest between tbe parties arises as to the payment of one hundred dollars, which was sent May 29, and to which Douglass, in his letter containing the money, refers as “ our first installment of one hundred dollars, which place to our credit.” The evidence shows, that the defendant and Douglass united in directing the money to be applied to the debt guaranteed. The plaintiffs were informed of the appropriation desired by the party making the payment. It was their duty to apply the payment in conformity with such desire. They had no legal nor equitable right to apply it differently. It is a familiar principle, that the party making the payment, has the right in the first instance, of directing the appropriation of his payment.

If the payment was made upon an account not then due, the creditors were under no obligation to receive it. But receiving it, they were bound to apply in accordance with the' directions of the debtor.

The plaintiffs. could not legally, if they would, make a different appropriation. Their account as rendered shows no distinction between the several payments made by Douglass or the defendant. From that account they would all seem equally to have been applied to the debt of Douglass. The guarantee was not continuous. The amount guaranteed has been paid and the defendant is discharged.

Plaintiffs nonsuit.