
    Reich v. Reich.
    Payment—application of.
    Appeal from judgment in favor of the defendant, entered upon verdict directed by the court.
    
      John L. Wilkie, for plaintiff (appellant).
    
      Abram Kling, for defendant (respondent).
   Fitzsimons, J.

The defendant had an undoubted right to-elect which note he chose to pay, but I fail to find in the printed ease on appeal any evidence that he exercised that right. In that event the plaintiff had the right to select either noté for payment, and seemingly he chose the note of November 28, 1890, and also compelled payment of the interest thereon, before he delivered it up to defendant.

The fact that plaintiff signed a receipt, stating that he received $1,000 on the note of June 6, 1891, is not conclusive against him. He claimed that he intended to insert the note of November 28, 1890, but by mistake inserted the note of June 6, 1891.

It seems to us that it was for the jury to say whether or not the defendant directed the plaintiff to receive the $1,000 paid in payment of the note of June, 1891, or whether or not the plaintiff of his own volition selected that note for payment. The question thus presented was a question of fact for the jury to determine and not a question of law for the learned trial justice to decide; therefore, in our judgment it was error for him to direct a verdict for defendant.

Judgment reversed and a new trial ordered, with costs to appellant to abide event of action.

McCarthy, J., concurs.

Judgment reversed, new trial granted, with costs to appellant to abide event.  