The Adams Express Co. v. Black et al.

pellee George W. Black was engaged in the business of keeping a livery-stable, in the city of Greencastle, Indiana, in which he kept, fed and groomed horses, by the day and week, for hire; that the appellant, by its agent, placed said horse in the stable of said George W. Black, for feed, care and attention, as such livery keeper, and the appellant then and there became indebted to said Black in a balance of ten dollars, which it refused to pay; and said George W. Black then and there held and claimed his lien on said horse, then in his possession, for said indebtedness so created. And the appellees further said, that afterward they formed a partnership in said livery business, and continued to keep and care for said horse for the appellant, at a fixed compensation per week, and the appellant then and there became indebted to the appellees, as such partners, in the further sum of fifteen dollars, for which they claimed and held their said lien on said horse, then in their possession, and they claimed to hold said horse, first, on behalf of said George W. Black for said indebtedness due him, and, secondly, for the indebtedness due to said firm, the appellees; that said horse thus being in the appellees' possession for the purposes aforesaid, the appellant then and there offered to pay the last named bill to the firm, and take said horse out of the appellees' possession; which the appellees were willing to do, if the appellant would pay both of the said bills, which it refused to do; and therefore the appellee George W. Black refused to surrender his possession of said horse to the appellant.

To the second paragraph of said answer, the appellant replied in five paragraphs, the first of which was a general denial, and the others stated affirmative matters, which we need not set out in this opinion.

The issues joined were tried by a jury, and a verdict was returned for the appellees, and that the value of the horse in controversy was one hundred dollars.

The Adams Express Co. v. Black et al.

The appellant's motion for a new trial was overruled, and to this decision it excepted; and judgment was rendered on the verdict, for a return of the horse to the appellees, and that they recover their costs.

The only alleged error, properly assigned by the appellant in this court, is the overruling of its motion for a new trial. Of this motion the appellant's attorneys say, in their brief of this cause in this court: "The motion calls in question the verdict, as not sustained by the law and not sustained by the evidence, but contrary to both; also the conduct or rather misconduct of the defendants, and the instructions given, refused and modified by the court.'

We will consider and decide the several matters, thus called in question, in inversion of the order in which counsel have stated them.

Before considering "the instructions given, refused and modified," complained of by the appellant in this court, it is necessary, we think, to an intelligible view of the case and of our decision thereof, that we should first give a summary, at least, of some of the undisputed facts of the case, as we gather the same from the record. In 1872, the appellee George W. Black was engaged in the livery-stable business, and in the business of boarding, feeding and grooming horses, in the city of Greencastle, Indiana, In 1873, he and his brother and co-appellee, Robert M. Black, became partners, and as such continued in the same business, in the same place. In both of said years the appellant had an agency for the transaction of its business, in said city of Greencastle, at which point one W. T. Thomson was the agent of the appellant. The horse sued for in this action was owned by the appellant, and was used by its agent, Thomson, in the transaction of the business of its agency at Greencastle. For some time, in 1872, this horse was boarded by the appellee George W. Black, at his said livery-stable, for the appellant, at the agreed sum of

The Adams Express Co. v. Black et al.

fifteen dollars per month. The board bills of the horse during the year 1872 were all paid by the appellant. When the board bill for February, 1873, became due, and, after the appellee George W. Black had demanded it from the agent, Thomson, the latter sent the amount of said bill, fifteen dollars, by his step-son, one J. B. Theirkoff, to said appellee Black. Before that time, the appellant's agent, Thomson, had made an account with the appellee George W. Black, amounting to nine dollars and fifty cents, which had no connection whatever with the boarding of the appellant's horse. The agent, Thomson, testified that this account was his own individual debt, but the appellee. Black claimed and testified that the account was made by the agent for the use and benefit of the appellant, and that he had charged the appellant therewith.

Accordingly, when the agent's step-son, Theirkoff, a lad of sixteen years, paid the appellee Black the said sum of fifteen dollars, without special directions as to the application thereof, the appellee applied, of said fifteen dollars, the sum of nine dollars and fifty cents to the payment of said account, and credited the residue of five dollars and fifty cents on the board bill of said horse for February, 1873. The appellee claimed that there was still due on the board bill of said horse, for February, 1873, the said sum of nine dollars and fifty cents, which the appellant refused to pay; and, until such payment was made, the appellees refused to surrender said horse, and hence this suit.

Before considering the instructions of the court, complained of, it is proper, also, that we should set out the statute under which the appellees had a lien on the appellant's horse for the amount, if any, really due them for boarding said horse. The statute referred to is an act entitled "An act to give livery-stable keepers, and others engaged in the feeding of cattle, horses, hogs, and other live-stock, a lien upon the same for their services as such, being supplemental to an act concerning liens of mechan

The Adams Express Co. v. Black et al.

ics, merchants and others, approved May 20th, 1852,” approved January 27th, 1853. By the 1st section of this supplemental act, omitting the enacting clause, it was provided as follows:

"That the keepers of livery-stables, and all others engaged in feeding horses, cattle, hogs, and other live-stock, shall have a lien upon such property for the feed and care bestowed by them upon the same, and shall have the same rights and remedies as are provided for those persons heretofore having by law such lien in the act to which this is supplemental." 2 R. S. 1876, p. 335, note ạ.

From the provisions of this act it is clear, that, if there was any sum due the appellees from the appellant "for the feed and care bestowed by them " upon the appellant's horse, they would have a lien therefor upon said horse. We pass now to the consideration of the instructions of the court, complained of by the appellant in this court. The eighth instruction of the circuit court to the jury trying the cause was as follows:

"8. If, from the evidence, the jury believe that Thomson was the agent of plaintiff, at and for Greencastle, and that at the time of payment by plaintiff of fifteen dollars at the hands of the step-sou of the agent, Thomson, the plaintiff was indebted to George W. Black for buggy and horse hire, for the use of the company, and for feed for the company's horse, theretofore procured from Black, and was also indebted for the boarding of said horse of the company in a further sum, in all amounting to twenty-five dollars or more, and that there was no express direction as to how the said sum should be applied, Black had the right to elect for himself upon what part of said indebtedness said payment should be applied.”

It is very clear, we think, that this eighth instruction did not contain a full, fair and correct statement of the law applicable to the case made by the evidence in this

action.

The Adams Express Co. v. Black et al.

"It is not necessary that the appropriation of the payment should be made by an express declaration of the debtor; for if his intention and purpose can be clearly gathered from the circumstances of the case, the creditor is bound by it." 2 Parsons Contracts, 5th ed., p. 630, and notes.

In the case of Tayloe v. Sandiford, 7 Wheat. 13, it was said by the Supreme Court of the United States, MARSHALL, C. J., delivering the opinion of the court: "A person owing money under distinct contracts has undoubtedly a right to apply his payments to whichever debt he may choose; and, although prudence might suggest an express direction of the application of his payments at the time of their being made; yet there may be cases in which this power would be completely exercised without any express direction given at the time. *** A payment may be attended by circumstances which demonstrate its application as completely as words could demonstrate it.”

The question in all such cases is, what was the intention of the debtor? and, whether this intention is expressed in words, or is implied from the surrounding circumstances of the case, when arrived at, it must prevail and will prevent any other different appropriation by the creditor. When, therefore, in this case the jury were told, that, in the absence of express direction from the appellant as to the application of the payment made, the appellee Black had the right to elect for himself the application of the payment made, we are clearly of the opinion that the court mistook the law applicable to the case made, and erred in such instruction.

At the proper time the appellant asked the court below to give the jury the following instruction:

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Payment of the exact amount due on one of two bills is a direction to apply on the bill, the exact amount of which is paid."