#### Justin L. Edwards v. Stapleton Powell.

From Martin,

Property delivered Co an agent, under a contract made by bis principal with a'tbird person, cannot without the consent of the princi-pa!, be applied by the agent to the payment of a debt due to himself from that person— .nd the fact that the agent was indebted to the principal, and the principal to the party delivering the property, does not alter the rule.

Debt for the balance of an account for goods and wares sold and delivered, tried before his honor Judge Strange, on the last Spring Circuit. The Plaintiff having established the balance due to him, the Defendant, on the plea of payment, ¡¡roved that in January, A. D. ,825, one William Wilson and himself entered into the following wriiten agreement: “This agreement made by the. undersigned parties witnesseth, that for the consideration of six hundred dollars paid by the said William Wilson in notes to the said Stapleton Powell, the said Powell agrees, and does by these presents agree to bind himself, his'heirs and assigns, to deliver William Wilson, hi» heirs and assigns four hundred barrels i» turpentine, to-wit. one hundred barrels of dipped to b< debve*;cl l e. by the 1st day of August, and three hundred of mixed, to Le delivered, &r. by the 1st day of January, 1826. in witness whereof, &c. this 26th day of January, A. D. 1825. In addition to the above, the *191said William Wilson agrees to take the balance of said Fono ell's crop, say one hundred barrels, more or less, for which the said Wilson is to allow and pay file said Poto-ell g>l 50 per barre!, in goods out of Justin L. Edwards’s store, or in some note of bam! against a good person.

June, 1829.

Witness, WILLIAM WILSON.

"Wm. R. BeNsf-tt. STAPLETON POWELL.’5

The subscribing witness to this agreement testified, that it was executed in the counting room of the Plaintiff’s store, who was also present, but whether he was privy to its contents did not appear; that Wilson removed to the State of New-York in February, A. XL 1825, having sold out his stock of goods to the Plaintiff, who still owed him for the price of them; that on the 1st of August, A. XL 1825, the Defendant delivered to the Plaintiff one hundred barrels of turpentine, on the 15th of November following, tw o hundred and fifty barrels, and on the 17 th of December of the same year, two hundred and sixty-five barrels, amounting to six hundred and fifteen barrels, for all of which, the Plaintiff gave written acknowledgments, stating the receipt.to be either on account of William Wilson, or as his agent.

A good deal of testimony, consisting of admissions by the parties, was offered on both sides, which it is unnecessary to state. The plaintiff proved an attachment sued out by the Defendant against Wilson, for the turpentine delivered, over and above the four hundred dollars, in which he (the Plaintiff) was summoned as a garnishee.

His Honor informed the jury, that if the Plaintiff had furnished the goods under an express agreement that they were to be paid for by Wilson, and that ho was to depend upon Wilson only for payment, or if knowing the terms of the contract between Wilson and the Defendant, he believed they were taken up by the latter upon the faith of that contract, and that Wilson was to be looked *192to for payment, they ought to find for the Defendant; otherwise they ooglit to find for the Plaintiff.

The Counsel for tiie Defendant requested the Judge £0 chai.ge the jury, that if the Plaintiff liad furnished the Defendant with die goods before the 17(h of December, A. D. 1825, and on that day with a knowledge of the contract, had received the surplus of the. Defendant’s crop under the contract, its receipt was in.payment for the goods. But his Honor, thinking that if the goods were furnished the Defendant on bis own credit, and were understood by him to be so furnished, the debt being then due to the Plaintiff in his own right, and the turpentine delivered to him as the agent of another, the one was not a payment of the other, without evidence of an actual application of it in that way — refused to give the jury such instructions.

A verdict was returned for the Plaintiff, and the Defendant appealed.

The case was argued by Hogg, for the Defendant, and by the Attorney* General, for the Plaintiff.

Hall, Judge.

I’think that the charge of the Judge below was correct. Although the Defendant might have expected, that his account with the Plaintiff would have been settled by the turpentine delivered to him under the contract with Wilson, yet it ought to have occurred to him, that Edwards could not apply it to that purpose without the consent of Wilson, although he might have been disposed to do so.

Neither could the Plaintiff have applied the surplus turpentine delivered to him on the 17th of December, to-the discharge of the Defendant’s account, because he received that also as the agent of Wilson, under the same contract, which Wilson a'nd Powell, the Defendant, had entered into, it is true, that it was to be paid for in goods from the Plaintiff’s store, or by a note on some good person. But the parties to this contract had not *193agreed to the specific mode of payment. If they had, it does not appear that it was made known to the Plain-r . tut. And it it had been, 1 see it no whore stated, that he was bound to take turpentine, in discharge of Defendant’s account. I cannot see that the fact, that Plaintiff was Wilson's debtor, can alter the view I have taken of the case, or the view which the Defendant himself took of it, when he procured an attachment to be issued against Wilson.

I think that the judgment of the Superior Court should be affirmed.

Per Curiam. — Let the judgment be affirmed.