Opinion
August Term, 1849.
1. When the law is called upon to make the application of payments by a debtor to a creditor, who has various demands against him, and no application has been made by the parties, the application can only embrace debts or demands for certain sums, or such as can be made certain, as accounts for work and labor, or for goods sold, or the like, but not uncertain and unliquidated damages.
2. There is another rule in this applications by the law, that it is to be first made to the debt for which the security is the most precarious.
APPEAL from the Superior Court of Law of HENDERSON, at Fall Term, 1848, Manly, J., presiding.
This was an action of debt on the bond of the defendant, as sheriff, for the default of his deputy in not collecting certain debts for the relators, and in collecting them and not paying over the money; and a special verdict was found, on which a judgment was rendered for the plaintiff. The special verdict was as follows: "The jury find that the defendant, Robert Thomas, was duly appointed Sheriff of Henderson County, and served as such during 1842, 1843 and 1844, and that the bond declared on is the act and deed of the defendants duly executed and delivered for the purpose therein recited; that he appointed one J.J. Summey, in February, 1842, his lawful deputy, for and in his name to do and perform all acts which he (the said Thomas) might lawfully do and perform as sheriff of the said county, and, by and with the consent of the said Thomas, he continued so to act as his deputy, up to 1 October, 1844. On 2 November, 1842, the relators placed in the hands of (166) the said J.J. Summey, for collection, notes on divers individuals, residing in Henderson County, which he received and undertook to collect in his official character of deputy sheriff, all of which were due and payable to the relators on 27 October, 1842, amounting in the aggregate, when due, to $1,114.70. All of the said notes were for a less sum than $100, except one note on William Brittain and John Johnson for the sum of $566. The said J.J. Summey paid the relators, on 28 June, 1843, $50; on 2 November, 1843, $437.43; on 2 June, 1844, $100; on July, 1844, $87; on 25 December, 1845, $40, and on 2 November, 1846, $20. At no time did the said J.J. Summey, or either of the defendants, direct the relators to make any specific appropriation of the money so paid, or inform them, or either of them, upon what claim or from whom the same had been received, but the said payments were made generally for moneys received by the said J. J. Summey for the relators, upon the notes put into his hands for collection, as aforesaid. Nor had the relators, previous to the commencement of this suit, applied the same to the payment of any specific debt or note placed in the hands of the said Summey for collection. The jury further find that the money upon all the aforesaid notes was, or by ordinary diligence might have been, collected by the said J.J. Summey, within the official year of the said Thomas, covered by the bond declared on, and that, previous to the commencement of this suit, a demand was made by the relators on the said J. J. Summey for all the money collected by him upon the claims or notes so placed in his hands, and no further payments were than those before stated. Whether the payments, made as aforesaid, ought in law to be applied, first, to the payment of the note on William Brittain and John Johnson for $566, or upon the other notes less (167) in amount than $100, or pro rata upon all the notes so placed in the hands of the said Summey for collection, the jury are ignorant and pray the advice of the court. If the court be of opinion, upon the foregoing facts, that the payments made, as aforesaid, should be applied to the payment of the note of $566, then the jury find all the issues for the plaintiff and assess the relators' damages at $603.74, with interest on $529.68 from 2 October, 1848, till paid; but if the court be of opinion that the payments made ought to be applied to the extinguishment of the notes so placed in the hands of the said Summey for a less sum than $100 each, they find in favor of the defendants; but if the court should be of opinion that the payments made ought in law to be applied pro rata upon all in the hands of the said Summey for collection, as aforesaid, then they find all the issues in favor of the plaintiff, and assess the relators' damages to $293.74 and interest thereon from 2 October, 1848, till paid."
The court, being of opinion, upon the foregoing verdict, that the payments should be applied, first, to the extinguishment of the note of William Brittain and Johnson, so advised, and it is accordingly adjudged that the plaintiff do recover of the defendants the sum of $10,000, to be remitted upon the payment of $603.74, with interest on $529.68 from 2 October, 1848, and costs, to be taxed by the clerk. From which judgment the defendants appealed.
Baxter and Thomas for plaintiff.
J. W. Woodfin for defendants.
No judgment can be rendered on the verdict. There must necessarily be a venire de novo. The application of payments by the law is only when the demands (168) to which it is applied are debts, or for certain sums, or such as can be rendered certain, as accounts for work and labor, or goods sold, or the like, and not for uncertain and unliquidated damages. Therefore, no more can be said here than that the money paid ought to be applied in satisfaction of the particular debts which had been collected by the deputy sheriff anterior to the time or times of the several payments, and that it cannot be applied to such of the claims as remain uncollected. For, in respect to the latter, the deputy did not make them his own, as upon a purchase, for not collecting them, and, therefore, he cannot be charged with the amount of them as a debt, but he can only be made liable for the damages the plaintiff sustains by his delay and laches. If, however, the deputy had collected anything on the bond of Brittain and Johnson, then, to the extent of the money so collected, the payments ought to be first applied to that demand, because it is the rule in this country to apply payments to the debt for which the security is the most precarious. Moss v. Adams, 39 N.C. 42. And that is the case with that demand, because the deputy alone is bound for that, while the sheriff and his sureties are also bound for the others. S. v. Long, 29 N.C. 379. But, as the verdict does not find that the debts were collected, but only that they were collected or might have been, no such case appears as yet as will enable the Court to make specific applications of the sums paid; but the case must go to another jury.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: S.c., 33 N.C. 253; Sprinkle v. Martin, 72 N.C. 93; Lester v. Houston, 101 N.C. 609.
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