Opinion
Spring Sessions, 1837.
ASSUMPSIT. Pleas, non assumpsit, payment, c.
Bates, for plaintiff.
Frame, for defendant.
The question in the case was as to the application of a payment made on account.
The plaintiff was a ship-chandler, and furnished articles for defendant's vessels. One of the vessels, the "Hermit," belonged to defendant alone; another, the "Rachel and Sally," belonged to "Boone Brown," and a third, the "Eclipse," belonged to "Boone, Brown Tomlinson." Articles furnished for these vessels were charged to them separately; and payments made, if general, were entered to such account as the plaintiff saw fit. One of the credits to the account of the "Eclipse," was of "cash received by Jacob Boone, by draft on Neall Barratt, $47 87," which the defendant contended should be credited to the "Hermit," which was Boone's vessel; the payment appearing to have been made by Boone.
To which it was replied, that all the accounts stood in the name of Boone "for several vessels;" that on a general payment made by him without instructions, the plaintiff had the right to apply it to which account he pleased; and that the sum of $47 87 being at the time the precise balance due on account of the "Eclipse," showed that the payment was meant for that account.
Per curiam. — Where there are distinct demands against a firm, and the individuals of the firm, if money of the partners be paid, though generally, it cannot be applied to the individual debt; and so, vice versa, a payment by the individual cannot be credited to the partnership account, unless there be evidence of consent. Roscoe Evid. 248-9. If this was a payment by Boone individually, the plaintiff must show his consent to the application he has made of it, or that such was at the time Boone's intention; otherwise it must now be credited to the "Hermit." The draft was probably inclosed in a letter, and which would show, perhaps, on what account the money was paid.
Verdict for plaintiff.