This ease brings before us the question, what are the duties of agents, trustees, partners, joint owners, and the like, in relation to the appropriation of money received by them, where they have at the same time debts due to themselves in their own right, and the care of debts or securities, either due to their principals, or cestui que trusts, or to their firms, or to others jointly with themselves, and payments are made by the common debtor generally, and without any designation of the accounts or claims to which he wishes them applied.
As between the party making the payment and the person receiving it in such case, the latter has the right, within a reasonable time, to аpply the money to any of the claims he holds, at his discretion; Sawyer v. Tappan, 14 N. H. 352. Though, even as between them, equitable considerations not mаterial to be here considered, may interpose to limit the discretionary right of the party receiving the money. Merrimack County Bank v. Brown, 12 N. H. 327; Caldwell v. Wentworth, 14 N. H. 438.
In considering this quеstion it is essential to keep in mind the distinction between the present case, where the party receiving the money stands in the relation of an agent or trustee for the party who claims it, and the case of the parties directly interested as debtor аnd creditor, and from the case of the creditor and the parties, who claim as sureties of the debtor. As between the creditor and the debtor and his sureties, the creditor may have the right to apply the money which he has received from the debtor without any application made by him, to such of his debts as it may be most for his interest to have paid. But it by no means follows that he will be entitlеd to make the same application when the question arises between him and those to whom he owes other duties growing out оf the relation of agent or trustee. To the debtor and his surety he stands in the relation
It is implied, in the very nature of an agent’s or trustee’s contract, that he will take the same care, at least, of the property intrusted to him that he does of his own. Jones Bail. 88; Edw. Bail. 372; Clark v. Earnshaw, Gow. 30; Harris v. Packwood, 3 Taunt. 264; Dunl. Pal. Ag. 14.
It would be a breach of good faith for a person to assume the duties of an agency, or trust, when he was at the same time bound to exercise a higher degree of diligence or cаre for another, without communicating that fact. By assuming such agency or trust, he agrees for the exercise of such care and diligence as careful men exercise in their own concerns. This he could not do, if he was bound to give his first attention to the interеsts of others, or if he was bound by his own interests to neglect the interests of those who confide in him, in ignorance of these circumstanсes, until he has first secured the preferred claims, or his own.
It seems, then, clear, that every agent and trustee, who has claims of his own, must be regarded as agent for himself and others, and bound to give his diligence and care equally to all the claims in his hands, and consequently to apply all moneys
The cases bearing on this question, though less numerous than might be expected, support this view. Thus in the case of Favenc v. Bennett, 11 East. 36, it was held, that where the same broker sold goods of A. and goods of B. to the same pеrson, a general payment, if insufficient to discharge both debts, must be applied proportionably to both. So in Barrett v. Lewis,
These cases are cited by the authors of the Americаn Leading Cases as authority for the position stated by them, that “ the creditor may, from the relation in which he stands to third persons, or frоm agreements with them, express or implied, be obliged to make a particular application. Thus, if one debt be due to him in his own right, and the other to him as trustee or agent for another, neither being secured, and a general payment be made, the debts will be considered as satisfied in law and equity rat-ably, because a trustee is bound to take the same care of his cestui que trusts’ interests, or of thе trust property, that he does of his own.” 1 Amer. Lead. Cases 288.
The case of Carpenter v. Gain, 19 N. H. 479, is not in con
The present case falls within this principle, and it was consequently the duty of the defendant to apply the payment of $85 ratably upon his own note and the note in which he and the plaintiff were jointly interested, and to this extent there must be a
Decree for the plaintiff.