Spencer Optical Manufacturing Co. v. Jump

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.