The promissory note being an unconditional promise to pay at a certain period, the verbal agreement would deprive the plaintiffs of the security afforded by the signatures of Scott & Co., if the assets of S.W. Scott prove insufficient to pay the entire indebtedness. This would be an inadmissible variation of the contract. (Parsons on Mercantile Law, 82; Reed v. Magruder, 10 Cal. 282.)
OPINION By the Court:
The question as to whether the defendant S.W. Scott, at the times at which he made the several payments to the plaintiffs, did elect to apply them, or any of them, to either of the three notes of his which were held by the plaintiffs, is a question of fact. Under the general rule he, being a debtor, had the right to direct the manner in which the payments, or either of them, should be applied. Had he given a distinct verbal direction at the time of making any one of the payments, there could be no doubt that it would be a payment only upon the particular note designated by him. If it be a fact that at the time the defendants, J. M. Scott & Co., as sureties of the other defendant, S.W. Scott, signed the note in suit, it was then agreed or understood between all the parties that such payment as the defendant S.W. Scott might thereafter make should be applied toward the satisfaction of that particular note, it would be a circumstance tending, in some degree at least, to establish by presumption that the payments, when they were subsequently actually made by the defendant S.W. Scott, without any intermediate change of his first intention, were to be so applied; and in this view we think that the proffered evidence ought to have been admitted.
Judgment reversed, and cause remanded for a new trial.