ance to one of joint except in the case of a deposit made by owners in Performcommon, or in joint ownership, which is regulated by the Title on Deposit. NOTE.-"Rendered to any of them."-Shepard vs. Ward, 8 Wend., p. 542; see Carman vs. Pultz, 21 N. Y., p. 547. "Except deposit made by owners in common or in joint ownership."-See Husband vs. Davis, 10 C. B., p. 650; Innes vs. Stephenson, 1 Moo. & R., p. 145. This provision does not of course apply to partners, whose title is distinguished from joint ownership by Sec. 682. 1476. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance. NOTE. Thus, if the creditor directs money to be sent to him by mail, it is at his risk.-Graves vs. Amer. Exch. Bank, 17 N. Y., p. 207; Eyles vs. Ellis, 4 Bing., p. 112. creditors. Effect of by credit directions ors. formance. 1477. A partial performance of an indivisible obli- Partial porgation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid retaining it without injuring his own property, his retention thereof is not presumed to be voluntary. NOTE. Smith vs. Brady, 17 N. Y., p. 187; Cunningham vs. Jones, 20 id., p. 486; Pullman vs. Corning, 9 id., p. 93. what. 1478. Performance of an obligation for the deliv- Payment, ery of money only, is called payment. NOTE. Where money is delivered by one party to another and credited on account by him who received it, it will be considered a payment, unless it is shown to be intended as a loan. But such is not the case with (other) personal property, even though a value be affixed thereto.-Norton vs. Larco, 30 Cal., p. 126. So far as extinguishing obligations for the delivery of money, payment and performance have the same meaning, so that under this section it may not be improper to note the leading California cases which involve, not the definition of the word "payment," but rather "what operates as a performance of the obligation to pay money," or in other words, "what constitutes a payment." And these cases have not always maintained the distinction made in this section that a payment is made by the delivery of money only, but payment and performance are often used in them as synonymous terms. In Smith vs. Harper, 5 Cal., p. 329, it was held that where a note was delivered to the maker, long before it became due, upon his giving the holder an order on the indorsers, which was dishonored, and thereupon it was returned to the holder, it did not operate as a payment. Giving a note does not extinguish the debt. It only has the effect to suspend the right of recovery until the maturity of the note. Brewster vs. Bours, 8 Cal., p. 501; Smith vs. Owens, 21 Cal., p. 11; Higgins vs. Wortell, 18 Cal., p. 330; Welch vs. Allington, 23 Cal., p. 322. Where a creditor received on account of his debt a bill of exchange drawn in his favor by the debtor upon a third person, it operates but as a conditional payment. If, however, the creditor fails to present it to the drawee for acceptance or payment, as required by the rules of commercial law, it becomes thereby an actual charge against him, and operates pro tanto as a satisfaction of his demand.-Brown vs. Cronise, 21 Cal., p. 386. Such undoubtedly would be the case with a bank check not presented for payment within a reasonable time.-See Minturn vs. Fisher, 4 Cal., p. 35; McMillan vs. Richards, 9 Cal., p. 365. In Rhodes vs. Hinckley, 6 Cal., p. 283, where the defendant being indebted to the plaintiff, a banking firm made a payment, on account, in the bank to one of the plaintiff's clerks, and on a subsequent day agreed to lend to the clerk the amount thus paid, who took the money and used it, and the amount thus paid was never credited to the defendant on the books of the plaintiff, it was held that the amount paid by the defendant, in the usual way of business, was a legal payment, and that the defendant lost all control over it. If the defendant is liable for the amount advanced (by plaintiff) to the clerk, it must be in an action for thus advancing it, and not in an action on the original indebtedness of the defendant. In Griffith vs. Grogan, 12 Cal., p. 314, a part payment by one of two joint debtors will not discharge such debtor am from the payment of the balance. His obligation is to tion of perform 1479. Where a debtor, under several obligations Applicato another, does an act, by way of performance, which general is equally applicable to two or more of such obligations, such performance is applied as follows: 1. If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, is manifested to the creditor, it is so applied; 2. If no such application is then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an applica ance. tion once made by the creditor cannot be rescinded without the consent of the debtor; 3. If neither party makes such application within the time prescribed herein, the performance is applied to the extinction of obligations in the following order; and, if there is more than one obligation of a particular class, to the extinction of all in that class, ratably: (1.) Of an obligation due at the time of perform ance; (2.) Of an obligation not voidable at the option of the debtor; (3.) Of an obligation secured by a lien or collateral undertaking; (4.) Of interest; (5.) Of the obligation earliest in date of maturity; (6.) Of the obligation which it is most for the interest of the debtor to extinguish. NOTE. This subject is usually treated exclusively with reference to payments of money, which have indeed furnished all the cases upon which decisions have been reported. Obviously, however, the same principles are equally applicable to all classes of contracts, as, for example, where one has agreed, at various times, to deliver parcels of merchandise of the same species, such as wheat, flour, fruit, etc. Subd. 1.—“If, at the time of performance.”—Allen vs. Culver, 3 Den., p. 284; Philpott vs. Jones, 2 Ad. & El., p. 41; Wendt vs. Ross, 33 Cal., p. 360. "The intention or desire."-Stone vs. Seymour, 15 Wend., p. 19; Waters vs. Tompkins, 2 Cr. M. & R., p. 725; Shaw vs. Picton, 4 B. & C., p. 715. "Is manifested to the creditor."-In Stone vs. Seymour it was held that no express direction by the debtor was necessary. In Van Rensselaer vs. Roberts, 5 Den., p. 470, somewhat different language is used. On the whole, seems reasonable to lay down the rule as in the text. The slightest act manifesting such desire is sufficient. See Roberts vs. Garnie, 3 Caines, p. 14. Subd. 2.—“If no such application is then made, the creditor," etc.-Allen vs. Culver, 3 Den., p. 284; Philpott vs. Jones, 2 Ad. & El., p. 41; Wendt vs. Ross, 33 Cal., p. 650. "Within a reasonable time."-See Bridenbecker vs. Lowell, 32 Barb., pp. 9-22; Allen vs. Culver, 3 Den., pp. 284-291. But in many cases it has been held that the creditor may exercise this right at any time.-Mayor of Alexandria vs. Patten, 4 Cranch, p. 317; Haynes vs. Waite, 14 Cal., p. 446; Mills vs. Fowkes, 5 Bing. N. C., p. 455; see Philpott vs. Ellis, 2 Ad. & El., p. 41. "Any obligation."-Arnold vs. Mayor of Poole, 4 Man. & Gr., p. 860; Trotter vs. Grant, 2 Wend., p. 413; Clark vs. Burdett, 2 Hall, p. 197; Mills vs. Fowkes, 5 Bing. N. C., p. 455; Van Rensselaer vs. Roberts, 5 Den., p. 470. "Performance of which was due."-Niagara Bank vs. Rosevelt, Cow., p. 409; affirming S. C., Hopk., p. 579; Baker vs. Stackpoole, 9 Cow., pp. 420-436. “In equal proportion to individual and trustee debts."-See Bridenbecker vs. Lowell, 32 Barb., p. 9; Wendt vs. Ross, 33 Cal., p. 650. "Consent of the debtor."-Allen vs. Culver, 3 Den., p. 284. When the creditor applies the payment to any particular debt, he cannot change such application without consent of the debtor.-Wendt vs. Ross, 33 Cal., p. 650. Subd. 3. (1.) Of an obligation due at the time of performance.-Thomas vs. Kelsey, 30 Barb., p. 268; Hunter vs. Osterhoudt, 11 id., p. 33; Baker vs. Stackpoole, 9 Cow., p. 420; Hall vs. Clement, 41 N. H., p. 166. (2.) Of an obligation not voidable at option of debtor.-Wright vs. Laing, 8 B. & C., p. 165; Crookshank vs. Rose, Carr. & P., p. 19. (3.) Of an obligation secured by a lien, etc.-Pattison vs. Hull, 9 Cow., p. 747; Dows vs. Morewood, 10 Barb., p. 183; The Antarctic, Sprague, p. 206; to the contrary is Johnson's Appeal, 37 Penn. St., p. 268. (4.) Of interest.-People vs. New York Co., 5 Cow., p. 331; Connecticut vs. Jackson, 1 Johns. Ch., p. 13; French vs. Kennedy, 7 Barb., p. 452; Williams vs. Houghtaling, 3 Cow., p. 86. (5.) Of the obligation earliest in date of maturity.-Dows vs. Morewood, 10 Barb., p. 183; Wheeler vs. Cropsey, 5 How. Pr., p. 288; Allen v. Culver, 3 Den., p. 284; Wendt vs. Ross, 33 Cal., p. 650. (6.) Of the obligation which it is most for the interest of the debtor to extinguish.-As to this point there is much controversy. The rule here stated, subject to all the preceding qualifications, is that which appears to be supported by the weight of authority outside of this State.-See Dows vs. Morewood, 10 Barb., pp. 183-189; Pattison vs. Hull, 9 Cow., p. 747. A payment is to be applied so as to stop the running of interest as soon as possible.-Jencks vs. Alexander, 11 Paige, p. 619. In Pennsylvania the interest of the creditor is consulted by the Court.-Johnson's Appeal, |