Page:Federal Reporter, 1st Series, Volume 1.djvu/289

 MBGUIAE V. GROVBa. 281 �and the note and mortgage in controversy were given, and Eonald & Co. appeared to have advaneed him, upon the day folio wing the execution of the note and mortgage, $2,000, and other sums thereafter to the aggregate amount of about $12,000, from which, deducting credits of somewhat over $9,000, there is slill elaimed to be a balance due of $3,500. The relative business of the two parties consisted in Groves making purchases of tobacco upon advances made by Eonald & Ce, and eonsigning the tobacco to them at Louisville for sale ; when sold, the amount would be credited upon Groves' indebtedness to them. �On the twenty-third of January, 1877, Eonald, Webb & Co., the successors of Eonald & Co., were adjudged bankrupt, and complainant was, by consent of their creditors, chosen trustee. The payment was made to complainant on Feb- raary 14 of the same year, Meguiar Bwears that Groves shipped him tobacco which sold for $900, without any direc- tion as to the proceeds; that when he sold it Groves was present, and wanted ail the net proceeds; that he handed him $160 in cash, and told him he would credit the balance on his account, tben held by him as trustee, to which no ob- jection was made by Groves, and it was so credited. Groves swears that he insfci-ucted Meguiar to apply this upon the Mayes note. Meguiar admits a conversation of this kind, but says it took place several months after he had received the money, and applied it generally upon Groves' account ; that having given the credit upon the account generally, he refused to change it. This theory seems to me much the more probable, not only because such had been the general course of their buiness, but also from the fact that Meguiar did not have the Mayes note, nor know of its existence at the time the sale of the tobacco was made, and indeed did not even bave the note when, as he says, Groves, several months afterwards, requested him to credit the amount upon it. �The more serions question in this case arises from the allejed extension of time and consequent release of the sure- ties, by reason of a chattel mortgage given on September 18, ��� �