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Johnson v. Boone's Administrator

2 Del. 172 2 Harr. 172 Court Del. Super. Ct. English

Contents

Majority

p. 172
JOSEPH JOHNSON vs. JACOB BOONE’S Administrator.

Headnote

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 to the individual account, unless he can show a consent to have it otherwise applied.
Assumpsit. Pleas, non assumpsit, payment, &c.
The question in the case was as to the application of a payment made on account.
The plaintiff was a ship-chandler, and furnished articles for defendant’s vessels. One of the vessels, the “ Hermit,” belonged to defendant alone; another, the “ Rachel and Sally,” belonged to “ Boone & Brown,” and a third, the “ Eclipse,” belonged to “ Boone, Brown & Tomlinson.” Articles furnished for these vessels were charged to them separately; and payments made, if general, were entered to such account as the plaintiff saw tit. One of the credits to the account of the “ Eclipse,” was of “ cash received of Jacob Boone, by draft on Neall & Barratt, $47 87,” which the defendant contended should be credited to the “ Hermit,” which was Boone’s vessel; the payment appearing to have been made by Boone.
To which it was replied, that all the accounts stood in the name •
p. 173
of Boone “ for the several vesselsthat on a general payment made by him without instructious, the plaintiff had the right to apply it to which account he pleased; and that the sum of $47 87 being at the time the precise balance due on account of the “ Eclipse,” showed that, the payment was meant for that account.
Bates, for plaintiff,
Frame, for defendant.

Where there are distinct demands against a firm, and the individuals of the firm, if money of the partners be paid, though generally, it cannot be applied to the individual debt; and so, vice versa, a payment by the individual cannot be credited to the partnership account, unless there be evidence of consent. Roscoe Evid. 248-9. If this was a payment by Boone individually, the plaintiff must show his consent to the application he has made of it, or that such was at the time Boone’s intention; otherwise it must now be credited to the “ Hermit.” The draft was probably inclosed in a letter, and which would show, perhaps, on what account the money was paid.

Verdict for plaintiff.