Page:North Dakota Reports (vol. 2).pdf/225

 conversation never took place. Moreover, Mr. Roberts distinctly swears that he never changed his direction that this note be paid out of the $20,000 loan. But it is further urged that the application of this money to the payment of this note was not made at the time of the payment of the money to the bank, but some time prior thereto; and that. under the provisions of our statute, the debtor must manifest his desire as to the application of the payment at the very time the money is paid. § 3457, subd. 1, Comp. Laws. We think this a too technical construction of the statute—one which loses sight of its obvious purpose. It was not designed to change the rule of the common law. The owner of money assuredly may determine the terms on which another shall receive it from him when he voluntarily parts with it. It is his, and he may control it up to the time he surrenders his control over it. He may insist that the creditor shall apply it in a certain way as the only condition on which he, the debtor, will pay it to the creditor. It is sufficient “if the will of the debtor is manifested to the creditor at the time. This is all the statute, in its most technical wording, requires. If, as in this case, in the course of negotiations and dealings connected with the future payment of money to a creditor, the debtor distinctly manifests his intention as to the application of it or of any part of it, and that purpose is not changed before the receipt by the creditor of the money, then in truth the intention—the design—of the debtor is manifested at the time the money is paid. If the statute is to have a technical construction—one which makes it necessary for the debtor to speak his mind at the precise moment he parts with the money—he must take care that no appreciable time elapses after he has expressed his will, and before he actually makes the payment. We cannot, by such an interpretation, shut our eyes to the palpable spirit of this enactment.

Some time after the receipt by the plaintiff of the proceeds of this $20,000 loan, the money being paid directly to the bank by the Jender, and not by Mrs. Roberts, she was in the bank, and Mr. Lyon, the cashier, handed her a package of notes, rolled up and fastened with a rubber band, saying to her at the time, “Here are the notes which the loan was made to take up.”