
    Fletcher W. Camp, Adm’r, App’lt, v. James W. Smith et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 6, 1892.)
    
    1. Limitation—Application op payments.
    Defendants as copartners made four promissory notes to plaintiff’s intestate, the defendant James being at the time individually indebted to her upon a bond and mortgage and on other notes. In this action upon the four notes, brought eight years after they were due plaintiff alleged that certain payments had been made by James to said intestate from year to year; that no application of said payments had been made by either; that they had not been endorsed on the bond and mortgage and asked that-the payments be applied on said four notes. Defendants set up the statute-
    
      limitations. The trial judge held that all the payments specified in the complaint should he applied on the individual indebtedness and refused to apply them upon the notes in suit. Held, no error.
    3. Same.
    Where one indebted individually and also jointly with another to the same creditor makes a general payment, the creditor himself in pursuance of the implied consent of the debtor may apply the payment either upon the joint or the individual demand as he chooses; but the court, when neither party has made the application, will apply the individual payment upon an individual and not upon a joint demand.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of defendants, entered upon verdict directed by the court
    This action was brought to recover the amount of four promissory notes made by the defendants and payable to Mary Etta Camp, who is represented by the plaintiff. The notes were all payable in one year after thsir respective dates. They were respectively dated December 9, 1875, June 5, 1877, July 28, 1877, and March 18, 1878. Mrs. Camp died November 25, 1884, and this action was. commenced January 30, 1890. The plaintiff in his complaint alleges four separate causes of action, one upon each note. In his first cause of action, after alleging the death of Mrs. Camp, administration upon her estate, the co-partnership of the defendants, and the execution and delivery of the note, the plaintiff further alleges as follows : “ In 1880, and in each year after said note became due, until the death of said Mary Etta Camp, the defendant James W. Smith made various payments to said Mary Etta Camp.
    “At the time of making said payment and at the time of the death of said Mary Etta Camp, said defendant James W. Smith was also indebted to said Mary Etta Camp upon each of the other causes of action set forth in this complaint from the time the same became due repectively as therein stated, and was also indebted to said Mary Etta Camp upon the cause of action upon a bond and mortgage, dated June 20, 1866, executed by said James W. Smith and held and owned by said Mary Etta Camp, made to secure the principal sum of $35,000 and «interest; and was also indebted to said Mary Etta Camp upon two promissory notes of said James W. Smith made payable to the order of said Mary Etta Camp, and delivered to her for value received at or about the dates and for the sums following, to.wit:
    December 9, 1875............................... $2,887 89
    Jtine 5, 1877................................... 3,400 00
    both of which notes were paid by individual payments made by defendant James W. Smith to Mary Etta Camp between December 14, 1875, and September 7, 1884.
    “No application of the payments hereinafter enumerated was made by said James W. Smith nor by said Mary Etta Camp upon any one of the aforesaid causes of action other than those sued on in this action. None of said payments hereinafter enumerated made since the causes of action herein sued upon accrued have
    
      been endorsed upon said bond and mortgage, although payments made before the making of the notes sued upon in this action were endorsed on said bond and mortgage. An action is now pending undetermined in this court by this plaintiff as administrator with a will annexed as above described against the defendant, James W. Smith, to recover the amount due on said bond and mortgage.”
    “ That among the payments made by said defendant, James W-Smith, to said Mary Etta Camp, were payments made on or about the dates and of the amounts following, viz:
    December 2, 1880..................................... $25
    December 23, 1880.................................... 15
    January, 1884..................................... • 35
    March 29, 1884 ...................................... 10
    April 10, 1884...............................■........ 85
    April 16, 1884....................................... 10
    April 21, 1884....................................... 10
    May 12, 1884............. 10
    •May 19, 1884................... 15
    Total........................................ $215
    “ That since the death of Mary Etta Camp, the defendant James TV. Smith paid to James TV. Camp, as executor of her will, $30 in October, 1885, which sum was applied by said James W. Camp as such executor upon the note sued upon in and set forth in the statement of this cause of action.”
    In the other three causes of action the plaintiff makes the same allegations, except that he sets forth in each count a different note and a different sum paid by James W. Smith after the death of Mrs. Camp to her executor, and applied by him upon the note. And the prayer for relief is as follows: “ Whereupon plaintiff demands judgment against -the defendants declaring and determining that the payments of December 2, 1880, December 23, 1880, January, 1884, and March 29, 1884, be applied on the note sued upon in the first cause of action, and that some of the remaining payments hereinbefore alleged, made in April and May, 1884, be applied upon each of the several other causes of action upon which this action is brought, set forth in the statements of the second, third and fourth causes of action, and that the plaintiff recover from the defendants $7,368.36, with interest at six per cent, per annum on $1,183.36 thereof from December 9, 1875; and on $1,185 thereof, from June 5,1877; and on $4,000 thereof, from July 28, 1877; and on $1,000 thereof, from March 18, 1878, less the payments aforesaid, to be applied as aforesaid, and less any other payments which the court may direct to be applied on account of said notes, respectively, and for the costs of this action, and such other and further relief as may be just.”
    The defendants answered separately. William F. Smith admitted the making of the notes as alleged, but denied the payments alleged in the complaint; denied that any payments were made to Mrs. Camp by the firm composed of the defendants, or by his or its authority, or with its funds, and he alleged that whatever payments were made by James W. Smith were made on his individual account with his individual money; and for a further defense, he alleged that “eight years have elapsed since the accruing of the right of action upon the said several four promissory notes set forth in the complaint, and that this defendant pleads the statute of limitations as a defense thereto.”
    James W. Smith, in his answer, admitted the copartnership of the defendants, and the making of the notes as alleged in the com- . plaint, but he denied the allegations in the complaint of the annual payments made by him to Mrs. Camp in the year 1880, and in each year thereafter to her death, and he alleged the following to be the facts:
    “ That in 1880, and in each year after the note for $1,183.36 made by the defendant, and set forth in the complaint, became due, and until the death of said Mary Etta Camp, this defendant, James W. Smith, made various payments to said Mary Etta Camp, and at the time of making said payments, and.at the time of the death of said-Mary Etta Camp, this defendant was indebted to .said Mary Etta Camp upon a certain bond and mortgage dated June 20, 1866, executed by him and held and owned by said Mary Etta Camp, to the extent of $25,000 of the principal thereof, said bond and mortgage being made to secure the principal sum of $35,000 and interest; but he denies that he was indebted to her upon any other bond, note, claim or obligation whatever.”
    He admitted “ that he made and delivered to Mary Etta Camp two promissory notes made payable to her order, at about the dates and for the sums following, to wit: December 9. 1875, $2,887.89 ; June 5, 1877, $3,400, and that both of which notes were paid by individual payments made by the defendant James W. Smith to Mary Etta Camp between December 14, 1875, and September 7, 1884, or thereabouts.”
    He denied “ that no application of the payments enumerated in the complaint were made by this defendant nor by said Mary Etta Camp upon any one of the causes of action set forth in the complaint, other than those sued on in this action; but, on the contrary, alleges the fact to be that each and every of said individual payments made by him were applied by him to the payment of the bond and mortgage herein recited.” He admitted that among the payments made by him to Mrs. Camp were those particularly specified in the complaint, and that he had made the payments specified in the complaint after her death to her executor, but he denied that such payments were appliéd by the executor upon the notes as alleged in the complaint. And he alleged the fact to be that all the several payments set out in the complaint were made by him individually' out of his individual moneys, upon his individual account and not upon firm account, and that they were applied by him at the time of such payments to his individual indebtedness existing at the time of such payments to Mrs. Camp. As a further and separate defense he set up the statute of limitations in the same language contained in the answer of the other defendant
    The action was brought to trial and the court directed a, verdict in. favor of the defendants.
    Other facts appear sufficiently in the opinion.
    
      William Mitchell, for app’lt; Éugene H. Pomeroy, for resp’ts.
    
      
       Affirming 45 St. Rep., 331.
    
   Earl, Ch. J.

The notes set forth in the complaint as the plaintiffs causes of action appear upon their face to have been barred by the statute of limitations long before the commencement of this action. The plaintiff sought to save his causes of action from the bar of the statute in no other way than by payments alleged to have been made thereon by the defendant James W. Smith.

In his complaint he alleges certain payments, but he does not allege that they were made upon the notes, or that they were made by the firm composed of the defendants, or that they were made on behalf of the firm or with its money, or that the payments made to Mrs. Camp were by either of the parties applied upon the notes. He alleges the payments were made by James W. Smith to Mrs. Camp, he at the time of the payments being otherwise individually indebted to her, and for relief he asks the court to apply such payments upon these firm notes. Ho one, we think, can read the complaint without the conviction that the plaintiff meant to rely solely upon the payments particularly alleged to save his cause of action from the bar of the statute. He alleges that certain payments, specifying them, made by James W. Smith after the death of Mrs. Camp, were applied upon the notes by her executor, and he asks to have the payments made to her, specifying them, applied by the court. They are the payments upon which in his complaint he relies, and as to which he seeks the verified answer of the defendants.

I have not failed to take notice of the allegation that James W. Smith made payments in each of the years from 1880 to the death of Mrs. Camp, and the allegation that the particular payments specified were “ among the payments ” so made. Hone of the payments having been applied upon the notes, the payments specified were the only payments which he asked to have applied to save his causes of action.

The trial judge held that the plaintiff could not, under his complaint, have the benefit of any payments except those particularly specified therein; and all those payments (except .that of ten dollars alleged in the complaint to have been paid by James W. ) Smith to the executor of Mrs. Camp and applied by him upon the note set forth in the fourth cause of action), were shown to have been applied upon the bond and mortgage in the suit brought by this plaintiff to foreclose that mortgage ; and, therefore, it is not now claimed that such payments could be used to save these notes from the bar of the statute. As to the ten dollars it does not appear clearly how that was applied, or whether it was applied at all. It is sufficient to say that the plaintiff did not prove his allegations in reference thereto, and his counsel did not, upon the trial, call the attention of the court to that item or make any claim that it should be allowed as a payment upon- any one of these notes.

Therefore, assuming that the judge was right in his ruling as to the complaint, he committed no error in the disposition he made of the case.

But it is claimed on the part of the plaintiff that the judge erred in his ruling, and that he had the right to prove in answer to the defense of the statute of limitations any payments made by James W. Smith which were applied or applicable upon the notes in suit Even if the judge did err in that ruling, the error was not harmful to the plaintiff. He was permitted to give all the evidence he offered or claimed to have as to payments. He does not complain that any of his evidence as to payments was excluded, and the question now is, whether any payments were proved which were available to save his causes of action from the statute of limitations.

There had been a prior action by the plaintiff against the defendant James W. Smith, which is reported in 49 Hun, 100; 16 St. Rep., 932, and 117 N. Y., 354; 27 St. Rep., 322. In that action the plaintiff sought to recover of him, individually, a certain sum of money alleged to have been due to Mary Etta Camp under the will of her father. In that action the notes upon which the plaintiff seeks to recover in this action were mentioned in the complaint, but the action was not based upon them. In his answer in that action the defendant alleged, among other things, that Mary Etta Camp had been paid all that was due her under the will of her father, and he further made what turned out to be the unnecessary averment that the several promissory notes mentioned in the complaint had been paid. Upon the motion of the plaintiff’s counsel in that action the defendant was required to furnish a bill of particulars of his answer as to payments, and he served such a bill, specifying numerous payments claimed to have been made by him to Mary Etta Camp between December 19, 1876, and November 18, 1884. Upon the trial of that action before a referee the defendant was able to prove some of the items specified in his bill of particulars, and some of them he was unable to prove; and the referee reported in favor of the plaintiff a balance due from the defendant From the judgment entered upon that report the defendant appealed to the general term, where it was reversed, and then the plaintiff appealed to this court. In the general term and here it was held that the cause of action set forth by the plaintiff in his complaint in that action was for money due Mar}' Etta Camp under the will of her father; that the action was not based on the promissory notes mentioned in the complaint; that the money due her under her father’s will had been discharged by the giving of the promissory notes, and that, therefore, there was nothing due her upon the cause of action alleged.

Hence none of the money payments alleged or proved in that action were applied upon any claim of the plaintiff as executor against the defendant, and such payments became wholly unimportant in that action. Upon the trial of this action the plaintiff, for the purpose of proving payments upon the notes in suit here, introduced in evidence the bill of particulars served in the former action, claiming that it should have the force and effect of establishing that payments were made by the defendant, James W. Smith, to Mary Etta Camp as therein specified, and that it was the duty of the court to apply them upon these notes in such way as to save them from the bar of the statute of limitations. He claimed that the six items of payments made in 1878, six in 1879, two in 1880, one in 1881, nine in 1882, four in 1883, and four in 1881, thirty-two in all, had never been applied by any court, or by Mary Etta Camp or the plaintiff as her executor, upon any obligations on which the payor was liable to her or him, and hence that they should be applied by the court upon these notes.

It is not easy to determine how much force, if any, under the circumstances, these specifications of payments in the bill of particulars are entitled to in this action. The former action was against this defendant individually, and the payments specified in the bill of particulars were alleged to have been made in discharge of his individual obligations, and he then claimed the benefit of those payments in discharge of such obligations. They were payments, as we must assume, made from his own funds, on his own account. By looking at the record in the former action it appears that those payments were denied by the plaintiff, and the defendant was defeated in his attempt to prove them on the objection of the plaintiff that he was not competent to give evidence of ■the payments to Mary Etta Camp, as they involved personal transactions between him and her! So if we have the admission of the defendant that he paid those items we have the denial, and so far as that action was concerned a successful denial, that he had made such payments. At the time those payments were made the defendant was individually indebted to Mary Etta Camp upon promissory notes and a bond and mortgage, in a gross sum largely ■exceeding all the payments made by him to her. The plaintiff now comes into court alleging that those payments were not applied in any way by either party. The defendant alleges that they were not applied upon the notes in suit, but that they were «applied upon his individual obligations, and there is no proof ■whatever in the case of the circumstances under which the payments were made.

At the commencement of this action there remained no individual obligations of the defendant upon which these payments could be applied except the bond and mortgage. The plaintiff had commenced an action to foreclose the mortgage, claiming that there was due thereon the sum of $35,000, besides interest The defendant in his answer in that action, among other things, alleged that he had made various payments upon the mortgage, and that there was due thereon only the sum of about $20,000. After the trial of that action judgment of foreclosure was entered for nearly $30,000, besides costs, which the defendant paid and discharged. Upon the trial of this action the plaintiff introduced the judgment roll in the foreclosure action in evidence for the purpose of showing that the payments above specified, which the plaintiff claimed to have applied upon the notes in suit, had not been applied upon the bond and mortgage. It was admitted on the trial of this action that the defendant attempted in the foreclosure action to prove the payments above specified, but that the defendant denied them and evidence of those payments was excluded on his objection that it involved a personal transaction with Mary Etta Camp. The result was that upon the objection of the plaintiff and the denial by him of the payments, the defendant was deprived in that action of the benefit of the payments which the plaintiff now claims he actually made to Mary Etta Camp. So this case stands upon the proof of payments, and we have this curious state of things; that in two suits prior to this between these same parties the, defendant alleged these payments to Mary Etta Camp, and the plaintiff denied that he had made them. In other words, the defendant admitted that he had made them, and we have the admission of the plaintiff that he had not made them. If the plaintiff is entitled to give in evidence the admission of the defendant against him the defendant is entitled to give in evidence the admission of the plaintiff against him ; and under such circumstances it is difficult to perceive, in the absence of any evidence corroborating either party, each party so far as the record discloses being entitled to the same credence, how it can be claimed under such conflicting admissions that anything whatever is established.

But if we are to assume upon any view of the evidence that the bill of particulars introduced by the plaintiff is to be taken as establishing that these payments were made to Mary Etta Camp, the whole admission contained in the defendant’s answer in the first suit and in the bill of particulars, and the circumstances under which the bill of particulars was served, must be taken into account, and then the legal effect of the admission of the defendant is that he had made those payments from his individual funds on his individual account in discharge of his individual liability. It would be exceedingly unjust now, after the plaintiff in the two prior actions had denied these payments, and in the foreclosure action deprived. the defendant of the benefit of them, that he should now be permitted to use them upon such evidence as we have here to the detriment of the defendant for the purpose of saving from the bar of' the statute notes many years past due at the time this action was commenced.

We have not overlooked the fact that these payments, so far as appears in this action, have not actually been applied upon any obligations due from the defendant to Mary Etta Camp. There was no finding in either of the prior actions that the defendant had not made these payments. He had simply been unable to prove them, because the plaintiff objected to his evidence as involving personal transactions between himself and Mary Etta Camp. It may, nevertheless, be true that he made the payments, and that but for the failure of his proof in consequence of the legal obstacles standing in his way, the judgment in the foreclosure action would have been for a much smaller sum than that rendered against him. It was either adjudicated in the foreclosure action that he had not made those payments (in which event both parties would be bound by the adjudication), or it was simply adjudicated that he had failed to prove them, while he may, nevertheless, have made them, in which latter event he was unjustly deprived of the benefit of the payments.

The most feasible view for the plaintiff is that these thirty-two payments were made to Mary Etta Camp generally while she held individual obligations against the defendant for larger sums than all the payments and also the firm obligations set up in the complaint in this action. There is no proof that Mary Etta Camp supposed or had any right to suppose that the individual payments made by Smith were made by him as a member of the firm, or out of firm funds, or to apply upon firm indebtedness. The rule is that where payments are made generally to a party who holds several obligations against the payor, which are not applied by either party, the court will make such application of the payments as equity and justice require, according to its own notion of the intrinsic equity and justice of the case. Field v. Holland, 6 Cranch, 8; Cremer v. Higginson, 1 Mason, 825; Bank of California v. Webb, 94 N. Y., 467.

From the facts and circumstances of this case it was not the duty of the court to apply the thirty-two payments or any of them upon these four notes, and it cannot be said that equity and justice required that they should be so applied.

The conclusion thus reached may be still further fortified. The defendant knew when these payments were made that Mary Etta Camp held against him these firm obligations as well as his individual obligations, and he made the payments to her from his individual funds, and, as I will assume, no application of the payments was made by either party. So, assuming the bond and mortgage to be then outstanding, it became the duty of the court upon the trial of this action to make application of the payments according to justice and equity. In such a case it seems to me quite obvious, in the absence of qualifying circumstances, that the payments made by the individual out of his individual funds should be first applied by the court upon his individual obligations, and I think at least the weight of authority sanctions such a rule. It appears to have been held in Van Rensselaer's Executors v. Roberts, 5 Denio, 470, that if one indebted individually and also jointly with another to the same creditor makes a general payment, the creditor may apply it to either account as he may choose.

That rule seems to have been announced without much consideration, and upon the authority of the case of Baker v. Stackpoole, 9 Cowen, 420, decided in the court of errors, where an entirely different rule appears to have been laid down, as follows: “Where A. has a demand against B. and 0. and a more recent demand ■against B. alone, who makes an indefinite payment, the law will

appropriate the payfnent first to the extinguishment of the individual demand, and then the residue, if any, to the joint demand, though, if both demands were against B. alone it might appropriate the payment first to the extinguishment of the oldest debt.” So the case of Baker v. Stackpoole is not authority for the decision in Van Rensselaer’s Executors v. Roberts. But the two cases may be so reconciled by holding that in such a case the creditor himself, in pursuance of the implied consent of the debtor, may apply the payment either upon the joint or the individual demand as he chooses, but that the court, when neither party has made the application, will apply an individual payment upon an individual, and not upon a joint demand.

In Livermore v. Olaridge, 33 Me., 428, it was held that a partial payment made by a party who was indebted severally and also jointly with another to the same creditor for items of book charges, is to be applied upon the several debt, unless a different appropriation is proved to have been intended at the time of payment. In Johnson v. Boone’s Adm’r, 2 Harr., 172, it was held that if one member of a firm make a payment to one who has an account against him, and also an account against the firm, the creditor must apply the payment on the individual account, unless he can show a consent to have it otherwise applied. In Munger on the Application of Payments, p, 173, the author, citing various authorities, lays down the role as follows: “A partial payment made by a party who was indebted severally and also jointly with another to the same creditor for items of book charges is to be applied on the several debt unless a different application is proved to have been intended at the time of payment." The rule laid down by these authorities is a reasonable one, and would, in most cases certainly, give effect to the intention of the persons making payments under such circumstances.

However, the plaintiff claims that this rule can have no application to this case, as at the time of the trial of this action he did not hold any unpaid, individual obligations against the payor upon which these payments could be applied. But he does not seek to have the payments applied as of the date of the trial upon these notes then barred by the statute of limitations. Ho court would make such an application to give new life to outlawed notes. What he seeks is to have them applied upon these notes as of the dates when they were made, and at those dates he held the individual obligations. If he wants them applied as of those dates the facts and circumstances then existing must control the application. He cannot have them applied as to the payor as of the date of the trial and as to himself as of the dates when they were made. He cannot claim that because the payor was, in consequence of her denials and objections, deprived of the benefit of these payments, now confessed to have been made, upon the individual obligations where, under the rules of law, they should have been applied, they should now be applied, to the disadvantage of the payor, where the law would not apply them when made. Having denied these payments when their admission would have benefited the payor, he should not now be permitted to assert them when their admission will harm the payor.

Our conclusion, therefore, is that the trial judge did not err in refusing to apply any of these payments upon the notes in suit, and there was no evidence in reference to them for submission to the jury.

It is, however, claimed on the part of the plaintiff that the answer of the statute of limitations in this case is not sufficient because it alleges eight years instead of six as the time which had elapsed. The attention of the court upon the trial was not called to this alleged defect, and the objection now made is altogether too technical. If eight years had elapsed certainly six years had, and the allegation was ample to give the plaintiff notice of the precise defense relied upon.

We are, therefore, of opinion that the judgment should be affirmed, with costs.

All concur.  