JOHN A. CARDINELL v. J. P. O'DOWD, P. J. McMAHON, M. NOLAN, and PATRICK DURKIN, 43 Cal. 586

By the Court, Belcher, J.: ' The objection that the statement was made in view of a motion for a new trial and therefore cannot be considered on an appeal from the judgment, is not well taken. The parties stipulated that the statement might be “ used as settled statement on motion for new trial and on appeal to the Supreme Court.” It was held in Hastings v. Halleck, 13 Cal. 203, that a similar stipulation was “sufficiently broad to include any appeal which plaintiff should elect to prosecute in the cause.” The action is upon a promissory note, and the defendants plead payment made by Dolan. .

At the time of the alleged payment the note was held by the City Bank of Savings, Loan, and Discount, as were also three other notes upon which Dolan was liable as maker or indorser. In September Dolan paid to the bank four hundred dollars, and in October, five hundred dollars. Tie instructed the clerk who received the money, he says, to, apply the payments on the note in suit, so far as was necessary to pay it in full, and the balance on the other notes. All of the four hundred dollars was applied to the payment of tlié other notes, and a portion of the five hundred dollars.

The other notes were delivered up to him, but according to his t testimony, not till December, when he says: “I did not want to accept them, but he put them on the counter and I took them away.” Murphy, a witness on the part of the plaintiff and President of the bank, testified that “Dolan came in with either four hundred dollars or five hundred dollars, and he wanted to pay some money on this note; I asked why he did not pay his own notes; he then took one or two of his own notes; Kenny handed me his notes; I think it was two; I saw him take the notes at the time the money was paid; think it was in September or October; I don’t know whether it was four hundred dollars or five hundred dollars he paid at the time; I cannot state whether it was the first or second payment the other notes were delivered.” On cross-examination he said: “ I think it was about the first of October; I recollect I was in the bank and saw Dolan paying once; all his notes were then handed, in my presence, to him.” There was other testimony tending to show that Murphy was not present when the second payment was made.

Counsel for plaintiff asked the Court to instruct the jury in reference to the first payment of four hundred dollars, “ That if, at the time said payment was made by Solan, it was paid on other notes and the notes given up to him at the time, then no part of said four hundred dollars could apply on this note.

And that though Dolan did direct the application of this money to the payment of the note in question, jpet that the holder did not so apply it, but applied it to the payment of other notes against Eolan, and he after-wards received it, and acquiesced in such application, and took and received the notes upon which such application was made and paid. Then, and in that event, it would be a ratification of the application made by the creditor.” The Court refused to give the instruction, and this is the principal error relied on for a reversal of the judgment.

It is clear that the first portion of the proposed instruction, if it had stood alone, and there was testimony to warrant it, should have been given. Counsel object that there was no such testimony, but they overlook the testimony of Murphy, which at least tended to show the exact state of facts supposed. ’ The rule invoked in the second proposition of the instruction is thus stated by Mr. Greenleaf: .“After a payment has been rightfully ascribed to one of several debts, it is not in the power of either party alone to change it.

But if both parties consent, the ascription may be changed to another; in which case the indebtment discharged by the former appropriation of the money is revived.” (2 Greenl. Ev., Sec. 532 a.) We think the instruction should have been given as asked. Judgment reversed and cause remanded for a new trial.