Page:North Dakota Reports (vol. 2).pdf/222

 prior to such payment, but not changed at or before such payment, is a manifestation at the time of the intention or desire of the debtor as to the application of such payment, within the meaning of § 3457, Comp. Laws.

4. A different application by the creditor will not bind the debtor, who has no knowledge thereof; and the delivery by the former to the latter of a roll of notes of the latter, which does not include the note which the debtor directed should be paid out of the money received by the creditor does not constitute constructive notice of the creditor’s different application of the payment, where such delivery is accompanied by a statement naturally inducing the belief that the debtor's direction has been obeyed.

(Opinion filed Aug. 29, 1891. Re-hearing denied Sept. 25, 1891.)

APPEAL from district court, Cass county; Hon. WILLIAM B. MoConnell, Judge.

Stone, Newman & Resser, for appellant. Benton & Amidon, Ball & Smith, and M. A. Hildreth, for respondents.

Action by the First National Bank, of Fargo, against Matilda M. Roberts and others on a promissory note. Judgment for defendants. Plaintiff appeals. Affirmed.

Stone, Newman & Resser, for appellant.

The answer of the defendant Roberts was frivolous and judgment should have been rendered against her on application. San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Humphrey v. McCall, 9 Cal. 59; Brown v. Scott, 25 Cal. 190; Wing v. Dugan, 8 Bush 583; Shearman y. Mills, 1 Ab. Pr. 187; Bliss on Code Pleeding, § 326. The pleader must allege positively that which is presumptively within his knowledge or which he has the means of ascertaining definitely. Stacy v. Bennett, 18 N. W. Rep. 26; Morton v. Jackson, 2 Minn. 219; Smalley v. Isaacson, 42 N. W. Rep. 352. The main question involved is, does the record show the note in suit to have been paid? The request of defendant’s agent that the note be paid out of the proceeds of a certain loan, if made as claimed, was not such a direction as would, under the co le, bind plaintiff; but assuming even that such directions were sufficient and had not been changed, the action of defendant Roberts in receiving from plaintiff the