Merrick, J.

It is impossible to find, in the statement of facts agreed to by the parties, any defence to this action. It appears that the defendants received of the plaintiff the sum of five hundred dollars, for the recovery of which this suit is brought and prosecuted, to be applied, according to his directions, to the payment of his note to the Derry Bank, then in their possession for collection. They were of course bound to make that application of the money. But they never did do so. On the contrary, they caused his note to be protested for nonpayment, and returned it to the Derry Bank, where, upon presentment to the plaintiff, it was paid by him with other money of his own. He then called upon the defendants to refund the five hundred dollars which had been received by them, but they refused to repay it. They had in the mean time appropriated it to their own use, by giving credit for it to the Calais Bank, to which corporation they erroneously supposed themselves to be indebted therefor. This appropriation, it is now conceded, was wholly without authority from the plaintiff, although at the time when it was made they believed that the money was paid and delivered to them for that purpose. It was undoubtedly an unintentional injury to the plaintiff, and resulted from a mistake of one of the officers of the defendants, acting in the regular course and discharge of hia duty. But the consequences of the mistake must fall upon the party by whom or by whose agent it was made. It affords no justification or legal excuse for the misappropriation of the plaintiff’s money, and has no tendency to relieve them from a just accountability for it. As it was not applied by them as they were bound to apply it in pursuance of the directions which accompanied its delivery to them, but was in fact mingled with other moneys of their own, and credited to another "corporation, they did in that way actually appropriate it to their own use. They had therefore manifestly in their possession money of the plaintiff, which they had no right to retain, and for which they were immediately liable to him. They should have paid it *464to him on demand. Having refused to do so, he can maintain an action against them upon their implied promise, and recover the amount to which he is entitled, under the count in his declaration for money had and received to his use.

The objection to the recovery of judgment by the plaintiff in this suit, because the parties were equally guilty of negligence, by means of which the defendants lost a similar amount of money in their failure to make the contingent liability of the indorsers of the note of I. D. Andrews absolute, cannot, upon the facts stated, be availed of by them. It was their peculiar duty to deliver to the agent of the plaintiff the note which was called for, and for the sole purpose of paying which the money was delivered to them. He received the instrument which was handed to him by the defendants as the note which be intended, and which he distinctly told their teller he intended, to pay. They meant to hand him the paper which he called for, and which it was his right to receive. For his own safety and security, and the safety and security of his principal, he should undoubtedly have examined the paper to see if it was the one to which he was entitled. But he was under no obligation of that kind to the defendants. He was not their agent, nor acting in their behalf. By delivering the paper to him, they authorized him to convey it to the plaintiff as the note for which his money was sent to them. This was done with all reasonable despatch; and the plaintiff, upon discovering the error which had been committed, not by him or by any agent of his, but by one of the officers in the employment of the defendants, did, without delay, everything which the most scrupulous good faith could require of him in their behalf. He immediately returned the I. D. Andrews note to the bank, and delivered it unconditionally to the officer from whom it had been received, to be used and disposed of as their own, or as they should determine that their interest or duty might require. This is all that could be required of him; for it was all that he could lawfully do with a note which was not his own, and in which he had no possible interest. The remark of the teller, when he took back the note, that “the plaintiff must look out what paper he bought,” meaning by this *465intimation that the note delivered to the plaintiff’s agent had been the subject of bargain and sale between the parties, and had been purchased by the latter, is entirely unwarranted by the facts and the circumstances attending the transaction. Nothing of that kind was thought of by either party; and it is idle to contend that an act which was distinctly understood by both of them to be the payment, by the maker, of his own note, was in truth the sale and purchase of another made by a stranger. If the defendants ultimately sustain a loss through their failure te realize the amount due on the note of I. D. Andrews, it is attrib' utable to the inattention and carelessness of their own officer, and not to the negligence of the plaintiff, or anything for which he is responsible. Judgment for the plaintiff.