
    Copes v. Perkins.
    Where the makers of a promissory note past due delivered to the payees, who still retained the note, a quantity of (torn “ to bo shipped to Galveston,” a part of which was so shipped and the balance of which was suffered to rot in the pens in which it was placed when delivered, it living proved that opportunities for shipping to Galveston were frequent at the time: lie Id. In a suit by an assignee ot tho note against the maker that tho jury wore authorized to find that the corn was a payment upon the note to tile oxtent of its market value at tho time.
    A merchant to whom produce is consigned by his debtor upon a note past due, without instructions as to tho disposition of the proceeds, has a right to apply them to the payment of tho noto; and if he fails to give other account of them, the presumption is that they were so applied.
    Error from Brazoria. Tiffs suit was brought on the 3d day of February, 1849, by the plaintiff" in error to recover of the defendant in error the contents of the promissory note of the latter, made payable ts> Smith & Adriancc, and indorsed by them to the plaintiff. The note bore date oil the 9th day of April, 1845. for'tlie sum of $’292.79, payable one day after date.
    The answer of the defendant contained a general denial, and a plea in wliieii he admitted the execution of the note, and alleged that after it became due and before it was transferred to the plaintiff, it being in the hands of the payees, in December, 1845, he delivered to them at their request four hundred bushels of corn, to be shipped by them to Galveston and sold, and the proceeds to be applied to the payment of said note; that the corn was worth eighty cents per bushel, or three hundred and twenty dollars; that the payees, Smith & Adriance, did not account for the corn, and that the note was fully paid and discharged in the manner aforesaid.
    The plaintiff excepted to the legal sufficiency of the answer, and also denied its truth. The exceptions were overruled. The facts proved were that the note was not transferred by-the payees to the plaintiff until after the 1st of June, 1840; that in December, 1845, or January, 1846, the defendant delivered to the payees of the note a quantity of corn, (differently estimated by the witnesses at from 250 to 400 bushels, most of them estimating at the latter amount.) to be Iwtbero shipped to Galveston ; that a part of it was so shipped and the balance rotted in the pens in which it was placed when delivered; that vessels were frequently there while the corn was in the pens, and that other corn was shipped from that place to Galveston about that time ; that some time after the corn was delivered it was seen in the pens in good order. Corn was worth there at that time from seventy-flve cents to oiie dollar per bushel. ’
    The court instructed the jury at the instance of the defendant that after a reasonable time allowed to ship the corn its value would be considered as a payment upon the notes if it was agreed between the parties that it should be so applied.
    There was a verdict for the plaintiff for $30.29; a motion by the plaintiff for a new trial overruled, and j udgment upon the verdict. And the plaintiff brought a writ of error.
    
      Alexander Atchison, for plaintiff in error.
    
      Harris & Pease, for defendant in error.
   Wheeleb, J.

It is objected to the judgment that there is an absence of proof of any agreement, as alleged in the plea, that the proceeds of the sale of (he corn should be applied to the payment of the note.

Whether such an agreement in fact existed was a question submitted to the jury by the instructions given by the court. And it was one which, under the evidence, it was competent for them to determine. The inquiry was as to what was the understanding and intention of the parties; and if their intention was that the proceeds of the sale of the corn should be applied, as alleged, to the payment of the note, it was the province of the jury so to find and to make that application of it which the parties had 'intended.' It is immaterial whether there was an expressed agreement or a mere tacit understanding of the parties to that effect. Their real intention, however manifested or ascertained, must govern. And tiiat it was their intention that the proceeds of the sale should be so applied the jury were, we think, warranted in finding. The evidence was circumstantial, but the circumstances were such as fully to authorize the conclusion drawn from them. The payees were in possession of the note of the defendant due when he delivered them the corn. Certainly they were to account for the proceeds of the corn when sold. From the fact of having received it, the law implies a promise on their part to do so. In the absence of any stipulation or understanding to the contrary it was their legal right to apply those proceeds when received to the payment of the note, and in the absence of proof to the contrary it is fair to presume that such was the .understanding and intention of the parties. If a different application was intended or was made, it was competent for the plaintiff to have shown it. The defendant was entitled to every defense to the note to which it would have been subject had suit been brought by the payees. (Hart. Dig., arts. 611, 612.)

The courf, cliH not err in deciding that the value of the corn might be considered and applied to the payment upon the note, and we are of opinion that the judgment be affirmed.

Judgment affirmed.  