Wilde J.
delivered the opinion of the Court. Several exceptions have been taken to the report of the master, upon the decision of which the principal matters in dispute between the parties will be determined, so that the case may be prepared for a final decree without any further reference.
The first objection to the master’s report is, that there was allowed to Capen his claim for services, to a large amount, as the agent of Crehore, upon or about the lands or lumber mentioned in the bill, without sufficient evidence to Drove that Crehore ever employed him, as his agent to perform such services.
It has been argued by the defendants’ counsel, in support of this objection, that Capen and Crehore are to be considered in a court of equity as partners, in all matters and proceedings relating to the lands and the proceeds ; and that by law, neither partner can be allowed to charge the other for services [504]*504rendered in taking care of or advancing the value of their join property, although their services may be unequal, unless there is some agreement to that effect between them. On the other hand, the counsel for the plaintiffs, without controverting the general principle of law as to partners, contended, in the first place, that Capen and Crehore, after the former had conveyed to the latter all his interest in the lands, and the proceeds therefrom, could in no sense be considered as partners. And if they could be, that there was sufficient evidence, as reported by the master, to authorize him to decide, as he had done, that Capen was appointed by Crehore his agent, to do and perform the services for which compensation had been allowed. And this answer to the objection appears to the Court entirely satisfactory. When the services were performed Ca-pen had no interest in the land, either legal or equitable. The conveyance to Crehore, was absolute', and the moiety conveyed was not held in trust for Capen, although it is averred in the bill, that it was so held. But this is denied in the answer, and there is nothing in the condition of the bond which can be so construed as to create a trust in favor of Capen. That was a mere personal obligation, and it was not certain that Capen ever would obtain any interest in the lands ; for the whole might be sold by Crehore, and in such case the plaintiff might be compelled to rely on his personal responsibility. We think, therefore, that Capen and Crehore, after the conveyance, had no joint interest in the lands, or the lumber taken therefrom, and cannot be considered as partners. And we are also of opinion, that the decision of the master is well supported by the evidence, even if the parties had been partners. In addi- ~ tion to the inference to be drawn from the correspondence between the parties, it was impliedly admitted in Crehore’s answer, that Capen was employed as his agent. r! He admits that Capen rendered an account of his claim foi services, as set forth in the bill, but denies that the account and claim, as to its amount, is a reasonable and proper one, and avers that a far less sum should be a full, fair, and sufficient compensation for all the said Capen’s services.” And again, it was suggest ed by Crehore, at the hearing before the master, “ that when said Capen accepted said agency he agreed to make no charge [505]*505for his services.” But there was no evidence to support the suggestion, and the master came to the only conclusion that the evidence could justify, namely, that Capen was appointed by Crehore as his agent, but that there was no agreement between them as to the amount of the compensation he was to receive for his services. The objection to the allowance of this claim, on account of the assignment by Capen to the other plaintiffs, cannot prevail, because Capen is a party to the suit, and is entitled to have his claim allowed, either for his own benefit, or for the immediate benefit of his creditors, for the payment of whose claims against him the assignment was made. It is immaterial to the defendants how the appropriation is made, as an allowance in this suit will be a bar to any future action for the claim. It has not been contended, nor can it be maintained, that Capen is improperly joined as a party. He has a residuary interest in the property claimed, after the payment of his debts, and is the only party in whose right the specific performance of the contract can be decreed. He was, therefore, necessarily joined as one of the plaintiffs.
2. The second exception to the master’s report is, that he disallowed a charge made by E. Crehore, for the loss of the sum of $ 500 sent by him in the mail to one Charles Pike, a contractor for cutting timber on the lands in question, and which never came to his hands.
It has been argued, that this remittance was made in good faith, and that Crehore is not chargeable with any want of ordinary care in remitting the money by mail ; that Crehore is to be considered as acting as trustee, and that if any part of a trust fund be lost, without any fault of the trustee, he using ordinary care, he is not responsible to the cestui que trust for the loss. And certainly such is the law in respect to trustees. By the law of England ihey are not entitled to any compensation for their services ; and it would be a hard law to hold (hem responsible for any loss, if they use ordinary care, or in other words, are not guilty of gross negligence. But Crehore, as has been already remarked, did not hold the lands conveyed to him by Capen in trust for him. The lands vested absolutely in Crehore, and were not incumbered with any tiust, so that the relation' of trustee and cestui que trust did not ex[506]*506ist between them. Nor were they partners, nor was Crehore the agent of Capen. They were merely contracting parties, and the stipulations, obligations, and liabilities of each party are expressed in, or are derived from, the condition of the bond. Capen is entitled to a conveyance, if he does the several things therein required of him to be done. In order, therefore, to decide the question, whether Capen is obligated to pay any part of the loss of the $ 500, we must look into the condition of the bond, in which there is set forth with great particularity whatever he is bound to do and perform, to entitle himself to a conveyance. The only clause which can apply to the question under consideration, is the following. After specifying sundry payments to be made by Capen, the condition requires that he should also pay “ one moiety of all such moneys as the said Crehore shall pay for or on account of all and every contract for procuring and obtaining lumber from the said lands, with interest thereon, from the time of payment; and one moiety of all other expenses, disbursements, taxes, costs, charges, and other payments whatsoever, which the said Crehore shall or may pay for, or in relation to all and every or any of the premises, including all reasonable charges of interest upon any such payments as he shall make in relation thereto.”
Although this clause does not, in express terms, require Capen to pay a moiety of any losses which Crehore should sustain in the prosecution of the business referred to in the condition of the bond, we nevertheless are of opinion, that any loss thus sustained by accident, or without any want of care and caution on the part of Crehore, is to be considered as included within the terms expenses, disbursements, and charges. But then we think there was great want of care in the remittance of the money, by mail. Such remittances are always hazardous ; and in the present instance the remittance by mail was unnecessary.
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Wilde J.
delivered the opinion of the Court. Several exceptions have been taken to the report of the master, upon the decision of which the principal matters in dispute between the parties will be determined, so that the case may be prepared for a final decree without any further reference.
The first objection to the master’s report is, that there was allowed to Capen his claim for services, to a large amount, as the agent of Crehore, upon or about the lands or lumber mentioned in the bill, without sufficient evidence to Drove that Crehore ever employed him, as his agent to perform such services.
It has been argued by the defendants’ counsel, in support of this objection, that Capen and Crehore are to be considered in a court of equity as partners, in all matters and proceedings relating to the lands and the proceeds ; and that by law, neither partner can be allowed to charge the other for services [504]*504rendered in taking care of or advancing the value of their join property, although their services may be unequal, unless there is some agreement to that effect between them. On the other hand, the counsel for the plaintiffs, without controverting the general principle of law as to partners, contended, in the first place, that Capen and Crehore, after the former had conveyed to the latter all his interest in the lands, and the proceeds therefrom, could in no sense be considered as partners. And if they could be, that there was sufficient evidence, as reported by the master, to authorize him to decide, as he had done, that Capen was appointed by Crehore his agent, to do and perform the services for which compensation had been allowed. And this answer to the objection appears to the Court entirely satisfactory. When the services were performed Ca-pen had no interest in the land, either legal or equitable. The conveyance to Crehore, was absolute', and the moiety conveyed was not held in trust for Capen, although it is averred in the bill, that it was so held. But this is denied in the answer, and there is nothing in the condition of the bond which can be so construed as to create a trust in favor of Capen. That was a mere personal obligation, and it was not certain that Capen ever would obtain any interest in the lands ; for the whole might be sold by Crehore, and in such case the plaintiff might be compelled to rely on his personal responsibility. We think, therefore, that Capen and Crehore, after the conveyance, had no joint interest in the lands, or the lumber taken therefrom, and cannot be considered as partners. And we are also of opinion, that the decision of the master is well supported by the evidence, even if the parties had been partners. In addi- ~ tion to the inference to be drawn from the correspondence between the parties, it was impliedly admitted in Crehore’s answer, that Capen was employed as his agent. r! He admits that Capen rendered an account of his claim foi services, as set forth in the bill, but denies that the account and claim, as to its amount, is a reasonable and proper one, and avers that a far less sum should be a full, fair, and sufficient compensation for all the said Capen’s services.” And again, it was suggest ed by Crehore, at the hearing before the master, “ that when said Capen accepted said agency he agreed to make no charge [505]*505for his services.” But there was no evidence to support the suggestion, and the master came to the only conclusion that the evidence could justify, namely, that Capen was appointed by Crehore as his agent, but that there was no agreement between them as to the amount of the compensation he was to receive for his services. The objection to the allowance of this claim, on account of the assignment by Capen to the other plaintiffs, cannot prevail, because Capen is a party to the suit, and is entitled to have his claim allowed, either for his own benefit, or for the immediate benefit of his creditors, for the payment of whose claims against him the assignment was made. It is immaterial to the defendants how the appropriation is made, as an allowance in this suit will be a bar to any future action for the claim. It has not been contended, nor can it be maintained, that Capen is improperly joined as a party. He has a residuary interest in the property claimed, after the payment of his debts, and is the only party in whose right the specific performance of the contract can be decreed. He was, therefore, necessarily joined as one of the plaintiffs.
2. The second exception to the master’s report is, that he disallowed a charge made by E. Crehore, for the loss of the sum of $ 500 sent by him in the mail to one Charles Pike, a contractor for cutting timber on the lands in question, and which never came to his hands.
It has been argued, that this remittance was made in good faith, and that Crehore is not chargeable with any want of ordinary care in remitting the money by mail ; that Crehore is to be considered as acting as trustee, and that if any part of a trust fund be lost, without any fault of the trustee, he using ordinary care, he is not responsible to the cestui que trust for the loss. And certainly such is the law in respect to trustees. By the law of England ihey are not entitled to any compensation for their services ; and it would be a hard law to hold (hem responsible for any loss, if they use ordinary care, or in other words, are not guilty of gross negligence. But Crehore, as has been already remarked, did not hold the lands conveyed to him by Capen in trust for him. The lands vested absolutely in Crehore, and were not incumbered with any tiust, so that the relation' of trustee and cestui que trust did not ex[506]*506ist between them. Nor were they partners, nor was Crehore the agent of Capen. They were merely contracting parties, and the stipulations, obligations, and liabilities of each party are expressed in, or are derived from, the condition of the bond. Capen is entitled to a conveyance, if he does the several things therein required of him to be done. In order, therefore, to decide the question, whether Capen is obligated to pay any part of the loss of the $ 500, we must look into the condition of the bond, in which there is set forth with great particularity whatever he is bound to do and perform, to entitle himself to a conveyance. The only clause which can apply to the question under consideration, is the following. After specifying sundry payments to be made by Capen, the condition requires that he should also pay “ one moiety of all such moneys as the said Crehore shall pay for or on account of all and every contract for procuring and obtaining lumber from the said lands, with interest thereon, from the time of payment; and one moiety of all other expenses, disbursements, taxes, costs, charges, and other payments whatsoever, which the said Crehore shall or may pay for, or in relation to all and every or any of the premises, including all reasonable charges of interest upon any such payments as he shall make in relation thereto.”
Although this clause does not, in express terms, require Capen to pay a moiety of any losses which Crehore should sustain in the prosecution of the business referred to in the condition of the bond, we nevertheless are of opinion, that any loss thus sustained by accident, or without any want of care and caution on the part of Crehore, is to be considered as included within the terms expenses, disbursements, and charges. But then we think there was great want of care in the remittance of the money, by mail. Such remittances are always hazardous ; and in the present instance the remittance by mail was unnecessary. If the money had been deposited in one of the Boston banks, it might have been passed to the depositor’s credit in one of the banks in Hallowell, Augusta, or Water-ville, and a check might have been forwarded payable to the order of Pike, the creditor, and in this manner the chance of loss might have been avoided. Or if the bank bill remitted had been cut into two parts, and one part had been remitted, and [507]*507the other retained until the receipt of the part remitted had been acknowledged, there can be no doubt that the remittance might have been safely made. This mode of remittance was not infrequently adopted in former times, when there was less facility of making remittances through the agency of banks. For these reasons, we think the master decided correctly in rejecting the charge of $ 500.
Thirdly, the defendants object to the decision of the master, rejecting Crehore’s claim for compensation for his services in doing the business referred to in the bond. This charge was made, as the master reports, in the form of commissions, in order to cover the expenses incurred by Crehore in raising money to pay the notes given by him and Capen, and extra interest for large sums of money advanced by him out of his own funds, to carry on the business and concerns provided for in the bond, at times when much more than legal interest was given for the loan of money in the Boston market. By the clause in the bond already referred to, it appears clearly that the charge of commissions was not agreed to be allowed, nor any compensation for Crehore’s services in transacting the business. And this seems to have been his understanding at the hearing before the master, for he claimed commissions only to cover expenses for raising money, and for advancing his own funds, &c. He did not prove that he had paid any extra in terest in order to raise money. If he had, we think that ought to be allowed, provided it was reasonable ; but then if he had used funds, at other times, acquired from the property conveyed by Capen, for his own private or individual concerns, that also should be considered. But as to these matters, there was no sufficient evidence to authorize the master to make any allowance for extra interest. As to the advances made by Crehore from his own funds, he certainly cannot charge more than legal interest, whatever was the rate of interest in the market. On the whole, therefore, we are of opinion, that the master decided correctly on the evidence as reported, and the exceptions to his report are overruled.
Exceptions overruled.