Littleton v. Harris

69 Mo. App. 596, 1897 Mo. App. LEXIS 105

• Court: Missouri Court of Appeals
• Decided: March 9, 1897
• Status: Published

Opinion

Bond, J.

Plaintiff replevied certain household goods under three mortgages given by defendant. The answer admitted that plaintiff was entitled to the possession of a certain part of the property specified in the answer and averred tender of the same and refusal of plaintiff to accept the goods. It claimed judgment for the remainder of the property not so tendered plaintiff. On the trial before the justice and in the circuit court defendant had judgment and plaintiff appealed.

The mortgages were given to secure three notes amounting to $66.45, $24.90, and $9.75, respectively. Prior to the institution of the suit defendant paid, as shown by receipts, $63.50. No application of these payments was made by either party. Defendant gave evidence that on the day the property was seized by the constable, plaintiff agreed with her to dismiss his suit and release the property, if she would pay $5 per week for six weeks. She exhibited receipts showing that four of these payments, amounting to $20, were made, and gave evidence that the remaining $10 was tendered to plaintiff and refused by him. Plaintiff denied the making of such an agreement, but claimed that he only agreed to release the property upon payment in full of the balance due. With the exception above stated, the aforesaid notes secured by mortgages, were unpaid.

Mortgage debts: application of payments: instruction Appellant complains of the instructions of the court in applying the payments made before the suit to the oldest debt, and in telling the jury that if they found plaintiff had an agreement after suit to release the property in consideration of $30, and, after having received $20 under such agreement, repudiated the same, then it was competent for defendant to designate upon which note the said $20 should be applied as a credit. There was no error in ..these declarations. Primarily the debtor has the right to designate the application of payments made to his creditor. Failing so to do, tiie creditor may make the application. If neither creditor nor debtor make any application, then the lawwill apply the payment to the debt first maturing, unless justice and equity demand a different .application. Beck v. Hass, 111 Mo. loc. cit. 268. In the case at bar the debts were all secured and of equal dignity, only differing from one another as to amounts and date of maturity. Hence the court did not err in applying the payments before suit to the oldest debt, nor in declaring that defendant was entitled to designate the application of the payment after suit, if it was shown that such payment was made upon an agreement which plaintiff had repudiated.

Judgment: costs. The only difficulty in this case relates to the failure of the court to render judgment for plaintiff for that portion of the property conceded in the x x , answer to belong to him, ana to tax de» fendant with the cost which accrued up to the date of the trial. That the judgment may be amended in these particulars, it will be reversed and remanded. It is so ordered.

All the judges concur.