Harris v. Gilbert

7 Citing cases

  1. In re Bartlett

    Bankruptcy No. 05-45130-HJB, Adversary No. 06-04045 (Bankr. D. Mass. Apr. 12, 2007)   Cited 11 times
    Discussing the application of the Restatement and citing many jurisdictions that have recognized the equity of this process

    , to make the application of payments in the first instance and, if he ornits to do so, the creditor may make the appropriation. . . . `[B]ut if there is no special appropriation by either party, and there is a current account between them, . . . the law makes an appropriation according to the order of the items of the account, the first item on the debit side of the account being the item discharged or reduced by the first item on the credit side.'") (quoting German Lutheran Church v. Heise, 44 Md. 453, 471-72 (Md. 1876)); Lee v. Yano, 997 P.2d 68, 75-78 (Haw.Ct.App. 2000) (collecting cases); Apple Valley Mall, LLC v. Floyd Realty Co., Inc., 1998 R.I. Super. LEXIS 2, *17-18, 1998 WL 182657, *7 (R.I.Super. March 30, 1998) ("[T]he debtor has a right to determine how payments are applied to amounts due in an account and ". . . in the absence of a direction to the contrary by a debtor, payment upon a general account may be applied by a creditor to the oldest item thereon . . .") (quoting Harris v. Gilbert, 128 A. 11, 12 (R.I. 1925)). According to these general principles, the Court must first look to whether the Debtors directed application of payments toward any particular outstanding invoices.

  2. Fowler v. Courtemanche

    202 Or. 413 (Or. 1954)   Cited 23 times
    In Fowler v. Courtemanche, 202 Or. 413, 454, 274 P.2d 258, a conversion action, we held that failure to give a similar instruction was error, but the opinion does not indicate that the judgment for the plaintiff was reversed for that reason.

    This court held that the money which was received from the building fund on the subcontract should be credited on the subcontractor's lien claim. "Where payment is made from a particular fund or source, such payment must be applied to a debt which is a lien upon such fund, or which is a liability against such a source, as against other debts, unless the parties who would be prejudiced by such different application acquiesce therein: 5 Page, Contracts (2d Ed.) § 2844-5, pp. 5028, 5031; Hughes v. Flint, 61 Wn. 460, 462, 112 P. 633; Harris v. Gilbert, 46 R.I. 350 (128 A.T.L. 11, 12); Boyer-Van Kuran Lbr. Co. v. Colonial Apts. Co., 94 Neb. 180, 183 ( 142 N.W. 519); Jordan v. Bank of Morrilton, 168 Ark. 117 ( 269 S.W. 53)." Fawkes v. Curtis, supra, 133 Or. 20, 25, 286 P. 981.

  3. Albert S. Eastwood Lumber Co. v. Britto

    155 A. 354 (R.I. 1931)   Cited 5 times

    It is well settled that the debtor may direct the application of a payment on account, but in the absence of such direction or a manifestation of intent the payment shall be applied in a particular manner, the creditor may apply such payment in the order which he may consider most advantageous to himself. Williston on Contracts, Vol. 3, § 1795; Harris v. Gilbert, 46 R.I. 350. While the trial justice made no specific finding as to direction of application by the respondent, from his allowance of the liens on lots Nos. 1 and 2 for the balance due on the contract, we conclude he accepted as true the testimony for the petitioner that there was no such direction.

  4. Fawkes v. Curtis

    286 P. 981 (Or. 1930)   Cited 5 times
    In Fawkes v. Curtis, 133 Or. 20, 286 P. 981, an owner negotiated a loan secured by a mortgage on his property, which loan was to be used in constructing a building thereon.

    The language of the order which Block received and the whole transaction plainly shows that Block understood that the money was paid by the loan company in payment for his labor and material. Where payment is made from a particular fund or source, such payment must be applied to a debt which is a lien upon such fund, or which is a liability against such source, as against other debts, unless the parties who would be prejudiced by such different application acquiesce therein: 5 Page, Contracts (2d Ed.) § 2844-5, pp. 5028, 5031; Hughes v. Flint, 61 Wn. 460, 462, 112 P. 633; Harris v. Gilbert, 46 R.I. 350 (128 A.T.L. 11, 12); Boyer-Van Kuran Lbr. Co. v. Colonial Apts. Co., 94 Neb. 180, 183 ( 142 N.W. 519); Jordan v. Bank of Morrilton, 168 Ark. 117 ( 269 S.W. 53). A subcontractor receiving the check of the owner, or mortgagee of the owner, between whom and himself no relation of debtor and creditor exists, must account for the rightful application of the proceeds of such check, the check being in itself notice of the source of the fund and a direction as to how it should be applied: Bowles v. Clark, 59 Wn. 336, 339

  5. Cook, Borden Co. v. R.Z.L. Realty Corp.

    50 R.I. 375 (R.I. 1929)   Cited 5 times

    The testimony shows the credit items in the account were not for materials placed by the Radding Construction Company in the R.Z.L. Realty Corporation's building but were for materials furnished elsewhere by the Construction Company and the credits were applied other than on general account because so directed by the person making the payment. Harris v. Gilbert, 46 R.I. 350. Even without directions concerning the application of payments on an account, petitioner would have been entitled to apply them to the earliest items charged and such application in this case would have applied the credits to items before August 1, 1925, which was prior to any of the deliveries for which petitioner here sought a lien.

  6. Kubatzky v. Pittsburgh Plate Glass Co.

    119 Okla. 236 (Okla. 1926)   Cited 10 times
    In Kubatzky, the trial court had foreclosed a mechanic's and materialman's lien and set the rate of post-judgment interest at ten percent.

    The check received by plaintiff was drawn in favor of the Pittsburgh Plate Glass Company, this plaintiff, and was signed by the Tulsa Realty Investment Company, by Forrest C. Welch, Sec., and the record showing Abbott Welch to be, for all practical purposes, the Tulsa Realty Investment Company, and the check bearing the notation "Invoice to O. Kubatzky Oct. 25, 1922," this being the exact date of the submission of the estimate to Kubatzky by the plaintiff for this particular material, and the face of the check calling for a sum sufficient to cover the cost of all labor performed and material furnished Kubatzky by the plaintiff for the building being erected on lot 3, block 1, upon which the lien is claimed, was sufficient notice to the plaintiff to warrant it, indeed, to require it, to apply the proceeds of the check to payment of all claims against the lands of the drawer of the check. In Harris v. Gilbert (R.I.) 128 A. 11, it is said: "Circumstances surrounding giving of check by owner to contractors, and transfer thereof by latter to materialman, held, to bind latter to apply it for owner's benefit, irrespective of whether contractors at time of payment directed check's application."

  7. Apple Valley Mall v. Floyd Realty Co., Inc., 97-4157 (1998)

    C.A. No. 97-4157 (R.I. Super. Mar. 30, 1998)   Cited 1 times

    Our Supreme Court has recognized the general rule of law that the debtor has a right to determine how payments are applied to amounts due in an account and ". . . in the absence of a direction to the contrary by a debtor, payment upon a general account may be applied by a creditor to the oldest item thereon, . . . ." (emphasis added). Harris v. Gilbert, 46 R.I. 350, 128 A. 11 (1925); see also 60 Am.Jur.2d Payment §§ 94 and 106 (1987); 2 Restatement (First) Contracts §§ 387-393 (1932); 2 Restatement (Second) Contracts §§ 258-260 (1981). The Supreme Court extended its interpretation under Harris,supra, by stating "[i]t is well settled that the debtor may direct the application of a payment on account, but in the absence of such direction or a manifestation of intent the payment shall be applied in a particular manner, the creditor may apply such payment in the order which he may consider most advantageous to himself."