Moose v. . Marks

21 S.E. 561, 116 N.C. 785

• Court: Supreme Court of North Carolina
• Decided: February 5, 1895
• Status: Published

Opinion

Fairgloth, C. J. :

It is agreed all around that the debtor may direct the application of his payment, and on his failure to do so the creditor may make the applicatipn, and if he fails then the law will make it to the debt with least security.

Here, the plaintiff held a note for $600 in his right as executor against defendant and another for a less amount as assignee in his individual right; the latter holding however was unknown to the defendant. The plaintiff applies by letter for $75 “ as one of the heirs is in a strain and needs it very much.” The defendant answers “ Find check for $57.50. I will send you some more as soon as I can raise it,” which was equivalent to saying, “ I send you'this amount to relieve the heir in distress”, and in legal effect was a request to apply it on the-$600 note, and good faith required that it be done.

Judgment Ee ver sed.