JOHN WENDT v. THATCHER ROSS, 33 Cal. 650

By the Court, Bhodes, J.: This is an action for money had and received. The defendant is not charged, nor is he upon the facts of the case chargeable as a bailee.

The objection, that all the persons who were interested in the purchase money for the mining claim should have been joined as plaintiffs, is deemed to have been waived because of the failure to take the objection by answer, the matter not appearing upon the face of the complaint. (Practice Act, Sec. 45.) In respect to the receipt of the money by the defendant for the use of the plaintiff, and the demand of the same from the defendant by the plaintiff, the evidence is conflicting, and we are not warranted in saying that those facts were not sustained by the evidence. The verdict for gold coin appears to be proper.

The purchasers of the mining claim paid the defendant on his account (which included among other items the charge for the purchase money for the claim), in gold coin and dust, all of which he entered in his book as “ cash.” The account was introduced in evidence by the defendant, and that showed a charge by the defendant against the purchaser of the claim of “ cash ” paid to the plaintiff, and the only cash mentioned in the testimony being gold coin, the jury might well find for the plaintiff in that kind of money.

The instructions to which our attention is directed involve some of the rules relating to the application of payments. When the defendant charged to the purchasers of the mining claim, in his account with them, the amount they then owed on the claim, that sum became, as between him and them, a mere item in his account, which was then an open current account.

The rule as to the application of the payments, of which no appropriation has been made by either party, but which are paid generally upon the account, is that the payments shall be applied, as they are made, to the charges in the order of time in which they accrue. Under this rule, the amount due for the purchase money was paid long before this account was commenced.

It would, perhaps, be nearer the true facts of the case to consider that the charge of this item in the defendant’s account was made merely for the purpose of hastening the payment by the purchasers, and that the amount remained due to the plaintiff—the defendant acting in respect to it merely as the agent of the plaintiff.. In such case general payments will be applied ratably to the debts of both the plaintiff and the defendant; and under that process the balance of the purchase money remaining unpaid by the purchasers would be reduced to a very trifling sum.

There was, however, evidence in the case tending to show an application of the money by the directions of one or the agreement of both of the parties. It was shown that two hundred dollars was at one time paid by the purchasers to the defendant, on the debt to the plaintiff, and that the defendant at another time assented to the remark of the purchasers, that the bill of sale was then settled or clear. The debtor may, at or before the time of payment, direct the application of the payment, and if the creditor receives the money, he is bound by the direction.

If the debtor omits to do so, the creditor may, generally, apply it to any debt he chooses ; and when the application is made, he is bound by it, and cannot, without the consent of the other party, change the application to another debt. (See 1 Am. Lead. Cases, 268; Notes to Mayor, etc. v. Patton, and Field, v. Holland.) The evidence tended to show an application of the money to the satisfaction of the debt due to the plaintiff by the direction either of the purchasers or of the defendant; and it makes no difference in this case which party directed its application.

The instruction given at the instance of the plaintiff is more favorable to the defendant than he was entitled to, for it requires that the money should have been appropriated by the defendant to the plaintiff’s debt, without giving the plaintiff any benefit of an. application of the money to that purpose by the purchasers.

The fifth instruction given at the request of the defendant, that “Wendt can only recover in this case when the jury are satisfied from the proofs that the money was actually paid defendant, for Wendt, by the Chinamen,” is also too favorable to the defendant; for it fails to give the plaintiff the benefit of an application, by the defendant, of a general payment—if the jury were satisfied that such an application of the money was made. Judgment affirmed. Mr. Justice Sawyer did not express an opinion.