The statute, requiring the appointment of a state agent to furnish town agents with pure liquors, does not withdraw this case from the operation of the common-law principle which authorizes the enforcement here of the contracts that were legal in Massachusetts. Gen. Laws, c. 109. The plaintiff was an agent of the state in a limited and peculiar sense. It does not appear that his making in Massachusetts a sale, valid by the law of that state, was a breach of his fiduciary duty. *Page 217
If the defendant had not paid any particular part of the account by the remittance of $89.50, but had sent that sum as a general payment on the account, it would have been applied first to items of existing legal indebtedness. Richards v. Columbia, 55 N.H. 96; Hall v. Clement,41 N.H. 166. His appropriation of it need not be express, but may be inferred from circumstantial evidence of his intention. Caldwell v. Wentworth, 14 N.H. 431, 440; Carpenter v. Goin, 19 N.H. 479. 482; Young v. Woodward, 44 N.H. 250, 253; Bangor B. Corp. v. Whiting, 29 Me. 123; Treadwell v. Moore, 34 Me. 112; Phillips v. Moses 65 Me. 70; Emery v. Tichout, 13 Vt. 15; Rohan v. Hanson, 11 Cush. 44, 48; Richardson v. Woodbury, 12 Cush. 279, 280; Moorehead v. Bank, 3 Watts Serg. 550; Bank v. Morehead, 5 Watts Serg. 542; Tayloe v. Sandiford, 7 Wheat. 13, 20; Peters v. Anderson, 5 Taunt. 596; Waters v. Tompkins, 2 C. M. R. 723; City D. Co. v. McLean, L. R. 9, C. P. 692; Chitty v. Naish, 2 Dowl. P. C. 511; Brazier v. Bryant, 2 Dowl. P. C. 477. It was evidently his understanding that he made the payment in discharge of the item of illegal debt of the same amount; and his payment with that manifest understanding was payment of that item. There is no legal fiction by which his remittance with the intention of paying that item is regarded as a remittance with an intention of paying a different item. The question is not whether, in law, he can be compelled to pay the illegal debt, but whether, in fact, he did pay it. His application of money to the payment of a particular debt is nothing more than his payment of that debt. His payment of the illegal claim was legal. State v. Rand, 51 N.H. 361. And if it were not, the law would not change it into a payment of some other claim. His lawful purpose of paying that item was irrevocably executed by his delivery of the money, as the plaintiff's purpose of violating the law was irrevocably executed by his delivery of the liquor. He paid the item which he intended to pay.
The indisputable and decisive fact of the defendant's intention is not expressly stated in the referee's report, but conclusive evidence of it is stated; and a report in conflict with that evidence could not stand. The report may be amended by the referee; or if, by reason of accident or mistake, the question of intention was not fully tried, the report may be recommitted for a new trial. Such order as the case requires will be made at the trial term.
Case discharged.
ALLEN, J., did not sit: the others concurred. *Page 218