JAN. TERM, 1857. ARMISTEAD v. BROOKE. ARMISTEAD V.
BROOKE. To the plea or the statute Of limitations, in an action upon a bond or sealed instrument, the plaintiff replied a part payment, and it appeared that he held several until:1pm ed claims against the defendant : Held, that the plaintiff, in support of the issue ,.n his part, must prove not only a part pay-. meet by the defendant of the bond, but an appropriation ot that part:payment, by the defendant to that partioular The doctrines of the cases of Alston v. State Bank, 9 Ark. 962; State Bank r. Woody et al., 10 id. 642 ; Woods y. Wylds, 11 Id. 758; Brown v. Hutchings, 14 Ark. 85, as to limitation and part payment, should be regarded as settled. If a debtor makes a payment, generally, to his creditor, who holds two or more undisputed claims against him, without exerting, at the time his general right of appropriating the payment to any particular debt, the right el f appropriation would pass—even to one then barred by the statute of limitations: but if he app ly it to a debt due by bond, then barred by the statute, the appropriation by the creditor would not have the effect ot reviving the residue of the debt. An instruction which assumes as proved a fact required to be found by the jury, is erroneous. So, also, if by the use ef broad and unqualified terms it is calculated to mislead the jury, although in a re-str.cted and qualified sense, it contained the law ap plicable to the point. The plaintiff read in evidence, to sustain the issue on his part, two letters, proved to be in the handwriting of the defendant, bat addressed to no one, and containing *matters in which [4'522 there was a reasonable ground to infer that they re-
ARMISTEAD V. BROOKE. VOL. 18 lated to the subject matter of litigation : Held, defendant. Under such circum-that as the letters were produced by the plaintiff stances, he undertook by his spe-and no suspicion was thrown upon his possession of them, the court decided correctly in permitting *cial replication, to prove not [6523 them to be read to the jury for what they might only a part payment by the defendant think they were worth. of the bond, but an appropriation of Error to the Circuit Court of Sebastian that part payment by him (the de-County. fendant) to that particular debt. Noth-HON. ing short of that could sustain the spe-FELIX J. BATSON, Circuit cial replication ; because the burthen Judge. of proving part payment, as well as that Fowler & Stillwell, for the plaintiff. it was appropriated by the debtor, is SCOTT, J. The writ was issued in the upon the party setting it up. See Al-year 1854, upon a declaration in debt ston v. State Bank, 9 Ark. 462, where containing a count upon a promissory this principle is laid down upon au-note, payable in June, 1853 : another thority, and where by misprint, the count upon a bond payable in the year word "creditor" appears where "debt-1843 ; another, for work and labor, and or" should have been inserted.) To re-for money lent, money paid, money vive a debt, due by simple contract, had and received, and money due on by express new promise, not only ia account stated. The cause was tried it necessary that there should be such by a jury, and there were a verdict and promise, but it is also requisite that judgment for the plaintiff below upon that promise shall be in writing. So to several issues of fact formed upon the revive such a debt by a promise to be pleadings, which were voluminous. implied from a part payment of that But, as the whole controversy in this debt, it is equally as essential that the case arose upon the issues upon the appropriation of that part payment to statute of limitations pleaded to the that. debt by the debtor shall be shown second count, it will be necessary to —the appropriation in the latter.mode notice only the pleading, evidence and of revival standing in the place of the, instructions as to that count. writing in the former mode. The pro-To the plea of five years to this count mise, that can have the legal effect to the plaintiff specially replied, that revive debt in the one case, must be a within live years the defendant paid written promise : while the payment. him $200 in part payment of the bond to have the same effect in the other in that count mentioned. The bill case must be an appropriated payment. of exception shows, by the deposition on the part of the debtor. (See State of Calvert. that besides the promis-Bank v. Wooddy , ,10 Ark. 642.) sory note and the bond, there was an The proof of the part pi.yment, and account stated between the plaintiff the appropriation are different matters. and defendant below, iu the fall of the On a simple contract debt due by pro-year 1853, relating to their dealings in missory note, for instance, where there cattle, mules, etc., and about the sum is no rebutting testimony, an endor-e-of 8450 found to be due from the latter ment of part payment upon it made to the former, with which statement by the payee .or holder aaccompanied of account both parties seemed to be by evidence, aliunde, that such en-satisfied. Thus the pliintiff held three dorsement was made before the note different claims against the defend-was barred, and thus at a time when ant, besides an open account of one it was against the interest of the party Calvert not sued for, which it seems to make it, would of itself be prim the plaintiff also held against facie evidence not only of the part
JAN. TERM, 1857. ARMISTEAD 17. BROOKE. payment, but of its appropriation by statute. But although he could right-the debtor. (&ate Bank v. Wooddy, 10 fully do this, that would not revive Ark. 642; Woods v. Wylds , "11 Ark. the balance that might remain of tht 758 ; Brown v. Hutchings, 14 Ark. 85.) barred debt for want of an appropria-But such a prima facie ease would not tion of the payment to that debt by thE be made, under the same circum-debtor. In such case the 'appropriation stances, by like proof as to such an would have been made by the creditor endorsement upon a "bond or any and not by the debtor. other sealed instrument ; " because as If, however, the creditor had held t6 such specialty debts, the statute but one debt against the debtor, or had provides that no such endorsement held one that was admitted, and other 524] "shall be deem • ed a sufficient claims that were disputed and not ad-proof of such payment, so as to take the mitted as debts, and there were no cir-case out of the operation of this act." cumstances attending the payment to Dig., ch. 99, sec. 33, p. 701). repel the presumption, then a jury Nor would such a prima facie case would be authorized to infer that the be made by an endorsement of the debtor did appropriate the payment to payee or holder of a promissory note, the single debt in the one case, or te if made after the bar had attached ; the undisputed one in the other. These because, then it would be to his inter-doctrines, having been frequently rec-est to make the endorsement. If part ognized and applied by the court, may payment, then, be made on such simple he well regarded as settled. contract debt after the bar has attached, 'The evidence in this case, in [*525 proof both of the payment and its ap-connection with other established propriation by the debtor has to be facts, conduces to show that, at the made otherwise than by an endorse-time the supposed payment was made, ment upon the instrument by the the creditor held several uhdisputed holder ; or it has to be done, as to a debts ,against the debtor, and also a bond or any other sealed instrument, claim founded on an account in favor whether made before or after the bar of one Calvert, which was disputed has attached, in order to make any and that under these circumstances such payment have the effect to take the debtor wrote to the creditor as fol-the ease out of the operation of the lows: "As it would seem that you in-statu t e. tend getting all you can out of me, I In either case—that is, of a simple will thank you to credit me by your contract, after the bar has attached, or board, upon some of the claims held of a bond, whether before or after—if by you, with one exception—an ac-it should be proven that the debtor count of Mr. Calvert--that, I think, he made a voluntary payment generally, is as well able to pay as myself." And and did not at that time, in express that after the receipt of the debtor's terms, exert his general right of ap-letter, the creditor endorsed upeln the propriation, and the creditor, at that bond debt, that was barred by the time, held two or more undisputed statute (and which was one of the claims against him, the general right debts held by him) a credit for board of appropriation would pass from the for himself and wife, with' interest debtor to the ereditor, and the latter, thereon to the amount of S222.37. in virtue of that right, would be au-Upon this state of case the court be-thorized to apply the payment to either low instructea the jury upon this poi nt of his demands ; and this, although as follows, to-wit: one of them might be barred by the "lst. That if the jury believe from
ARMISTEAD V. BROOKE. VOL. 18 me evidence that the writing obliga- plaintiff to enter the credit upon the tory in the secbnd count of the plaint- bond debt, under this request to enter iff's declaration mentioned, was held the credit upon some one of several by the plaintiffat the time the letter debts in which was included the was written by the defendant, request- bond debt, was legally equivalent to ing the plaintiff to credit the amount of such a special appropriation of the part a board bill, owing from the plaintiffto payment of the debtor himself to the him, on any of the claims the plaint- bond debt, as would have the effect to iff held against him, except a particu- take the balance of that debt out of the lar debt specified in the letter, and that operation of the statute. that letter was written within five Whether the appropriation to that years before the institution of this debt was made by the defendant or suit, and that the plaintiftaccordingly not, was a question of fact for the jury elected to pass the credit for the board to determine. If he made it, the jury bill on that writing obligatory, and would have then been authorized to that the said writing obligatory is not find a further fact, if there was no tes-the one excepted, the proof is sufficient timony to rebut the inference of such a to sustain the issue formed upon the fact, to-wit, that the defendant had special replication to the pl ea of the made such a new promise, as to the statute to the second- count." bond debt, as would take it out of the "2d. That if the jury find from the operation of the statute. If, on the evidence that the credit for board en- contrary, the jury had found that the dorsed on the writing obligatory in the plaintiff, and not the defendant, had second count of the plaintiff's declara- made the appropriation of the payment tion mentioned, was authorized by the to the bond debt, then there was no defendant within five years next before foundation on which they could have the commencement of this suit, they found the further fact as to the new should find the issue formed upon the promise. Because the new promise is plaintiff's replication alleging a part not inferable from the plaintiff's payment within five years for the appropriation, but from the defend-plaintiff." ant's. Besides, in these respects, in-5261 *The former of these instruc- vading the province of the jury by un-tions, assuming as a fact that the let- dertaking to determine the matter of ters in question were written by fact against the defendant below, that the defendant to the •plaintiff, he did exert the right of appropriation, and that they related to the and in the exercise of that right did matter in controversy—ot which fix the payment especially to the bond the only evidence was the contents of debt ., the instructions also seem to con-the letters themselves, which, upon found the legal distinction between the their face, were addressed to no one debtor's and the oreditor's respective (but no suspicion was thrown upon the rights to make an appropriation of plaintiff's possession of them), and in a payment. These respective rights their subject matter did not explicitly of the debtor and ereditor are dis-and necessarily relate to these matters *tinct and several. Those of the [*5 —and that the request therein con- latter begin where those of the former tained, to credit the holm upon end: and if neither party chooses to ex-some of the claims, was equivalent to ert his right, then the law makes the a request to enter it upon any one of appropriation according to fixed rules. them, proceeds to lay down the legal 'In this case a cross-demand for board, proposition, and the election of the which the defendant held against the
JAN. TERM, 1857. A RMISTEAD V. BROOKE. plaintiff, had to be first agreed between tion, although in a restricted and qual-plaintiff and defendant to be dis-ified sense (that is, if the authorization counted as payment before it could be was by means of a special appropria-insisted upon as a technical payment. tion of defendant to that debt), it The proposition to this effect, that went *contained the law applicable to [*528 out from the defendant, had, to be ac-the point, nevertheless, in the broad cepted by the plaintiff. Along with and unqualified terms used, it is al-that proposition was the further re-most inevitable that the jury would quest that, if acceded to, the technical have been misled by it. The endorse-payment, thus effected by the trans-ment upon the bond really cut no fig-mutation of the cross-deman , d iuto pay-ure further than it might indicate that ment, should be applied upon "some of the plaintiff had acceded to the propo-the claims held" by the plaintiff, other sition, to transmute the cross-demand than a specified disputed one. into a technical payment, and had If the defendant had said nothing elected to place it to the credit of the about this disputed claim, and had barred debt; and inasmueh as the de-simply requested the credit to be en-fendant had prohibited its application tered upon "some of the claims held by as a payment, only, to the Calvert ac-the plaintiff-he holding several—it count, it was within the election of the would seem clear enough, as a matter plaintiff, as well applicable to either of of fact, that he did not exert his right the other debts held by the plaintiff of appropriation, and consequently as against the defendant; and therefore, a matter of law, that that right passed supposing the fact to be that the de-over to the plaintiff, who, at his elec-fendant did not specially appropriate tion, would have been authorized to the payment to any one of the other enter the credit upon the barred debt, several debts, the plaintiff would have although that could not have had the been just as fully authorized to place legal effect to revive the debt, because the credit upon any one of them as the appropriation was his own, and not upon any other. the defendant's. But having men-We think, therefore, that the court tioned the disputed debt, and restricted erred in giving both of these instruc-the plaintiff's right of appropriation to tions. that extent, he necessarily, under such In the case of Alston v. The State circumstances, must be taken to have Bank, 9 Ark. 462, it is laid down, that exerted the right of appropriation be-the burthen of proving both the pay-fore it passed from him to the plaintiff, ment and the appropriation is upon the to an extent corresponding with the re-party setting it up; and in the case of striction placed by him upon what the State Bank v. Wooddy et al., 10 Ark. would have otherwise been the plaint-643, it is laid down that: "It is indis-iff's right, without restrictions, other pensable that either an actual part pay-than those imposed by the general law. ment of, and appropriation to, the par-And the question, whether he did so to ticular debt, by the party or by his au-a greater extent, and if so, whether to thority, be shown by the evidence ; or the extent of appropriating the pay-else that such facts and circumstances ment to the bond debt, would be one be proven as will authorize the infer-that was open to the inquiry of the ence of the part payment and appro-jury upon the evidence before them, priation by the party or his authority.' and ought not to have been closed by It is therefore equally competent- for the instructions of the court. 1. On part payment, see Alston v. Stam Bank, With regard to the second instruc. 9-462, note 1.
Void. 18 a party to make a part payment, and its appropriation, by his agent duly authorized to do both, that would take the case out of the statute, as to make such payment and appropriation in proper person, and the question, in either case, would be the same; that is, whether or not the party did in fact make such payment and appropriation, whether done by himself or agent duly authorized in t h e premises. In either case, if the payment was made in express terms, or to be implied, as where the creditor held but one debt, and there was no rebutting circumstances as to a promise to 52941 *pay the residue, it would be sufficient to take the case out of the statute. But in no case could the part payment have that effect if the appropriation, either express or implied, was not made by the debtor, and was in fact made by the creditor. With regard to the question as to the competency of the two letters allowed to be read in evidence, we think that as they were produded by the plaintiff, and no suspicion was cast upon his possession of them, and were proven lo be in the handwriting of the defendant, and contained matters in which there was reasonable ground to infer that they related to the subject matter of litigation, the court decided correctly in permitting them to be read to the jury, for what they might think them worth. For the error as to the instructions, the judgment will be reversed, and the cause remanded. tited:-19-694; 20-189; 44-534.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.