Gwin v. McLean

62 Miss. 121

• Court: Mississippi Supreme Court
• Decided: October 15, 1884
• Status: Published

Opinion

Cooper J.,

delivered the opinion of the court.

The method of appropriating payments and credits adopted by the Chancellor is the correct one where no appropriation has been made by the parties and there is no contract express or implied that another shall be adopted. But where there is an express agreement between the parties, or a course of business from which an agreement would be implied that another rule shall control, the debtor cannot invoke the principle that appropriations are- to be made in the manner most beneficial to him. Admitting that the accounts of the parties from year to year have not become accounts stated (and this as to some of the years seems to be more than probable), we are impelled to the belief that McLean believed, or ought to have believed, that Gwin understood the annual accounts were to be offset the one against the other, and only the balances due from him to McLean & Co. or to McLean were to be credited on the interest-bearing notes. Whatever he may have thought in this regard, we are satisfied that Gwin at least was entitled to rely upon such course of settlements. Under such circumstances it. was error to appropriate the credits to the notes until all the mutual annual dealings had been settled by the application of debts and credits to their mutual extinguishment. It is immaterial whether there was or was not an actual appropriation by the parties, for the course of dealings was the equivalent of an express contract for appropriation from which the debtor cannot recede without the, consent of the creditor. For this error the decree will be reversed. The accounts are too complicated to admit of their being settled in this court. We therefore decline to refer them to our clerk.

We express no opinion on the details of the accounting, since the errors, if any, may be corrected by the Chancellor when the case is remanded to the court below.