Spencer Optical Manufacturing Co. v. Jump — 10 N.Y. St. Rep. 130

Majority

p. 130

Spencer Optical Manufacturing Company, Resp't, v. Frederick Jump, App'lt.

(Supreme Court, General Term, Third Department,

Filed July, 1887.)

Headnote

Application op payments—Ratification.

This defendant was at the same time indebted to this plaintiff for goods

p. 131

sold and delivered, and to a firm occupying the same store with the plaintiff, the members of which were interested in and managers of the plaintiff’s business He made payments to the parties so managing the plaintiff’s business, which were by them applied to the indebtedness to their firm, and in the application of these payments he acquiesced. Held, that the payments were properly refused as credit on the plaintiff’s account.

Appeal from a judgment in favor of the plaintiff against the defendant, entered upon the report of a referee.

The complaint alleged a balance due plaintiff upon goods sold and delivered to defendant. The answer denied such sale; alleged a delivery of certain goods by plaintiff to defendant, to be sold upon commission, and that the defendant had accounted for the goods so far as had sold them.

N. A. Calkins, for app’lt; J. B. Olney, for resp’t.

The defendant became indebted September 1, 1882, to the plaintiff in the sum of $128.50, for goods sold to him by the plaintiff upon a credit of four months. He was at the same date indebted to J. E. Spencer & Co. in the sum of $115, for goods sold to him by that firm on previous dates. The plaintiff and J. E. Spencer & Co. occupied the same store, and the members of the firm were interested in and the managers of the business of the plaintiff.

The defendant sent by mail', to the plaintiff at different dates after September 1, 1882, two separate checks of $30 each. One of these checks he certainly intended should be applied upon his account with the plaintiff, and we may assume, though the evidence is not conclusive upon the subject, that he intended the other should also be applied upon his account with the plaintiff. Nevertheless the persons who managed the business of both creditors of defendant, applied the checks upon this account with J. E. Spencer & Co. The referee refused to credit the defendant with these payments upon plaintiff’s account, and this refusal of the referee is the main ground of this appeal.

We have read the entire testimony, and we think the referee did right.

The testimony we think satisfactorily establishes the fact that the defendant with full knowledge of the application of these payments upon his account with J. E. Spencer & Co. ratified such application, and consented to take the benefit of it.

It is not necessary to set forth this testimony; it is well summarized in the points of plaintiff’s counsel. There are no other errors alleged which require discussion.

The judgment should be affirmed, with costs.

Learned, P. J., and Bocees, J., concur.