Eastman, J.
In deciding these two cases, it is necessary that they be considered somewhat in connection. We will, however, take them up in the order of time, and pass upon the questions as raised by the auditor.
The first question presented, is, whether the amendment proposed to be made to the first suit is admissible. The writ contains but one count, and that is a general one, for labor and services. The plaintiff moves to amend his writ by adding two new counts ; one for goods, wares, and merchandise sold and delivered, and the other for the use and occupation, by the defendant, [347]*347of the plaintiff’s dwelling-house. Our 14th Rule of Court provides, that no new count or amendment of a declaration shall be allowed without the consent of the defendant, unless it be consistent with the original declaration, and for the same cause of action. By this rule it is clear that this amendment cannot be allowed, except by the agreement of parties. It cannot be pretended that the cause of action for work and labor is the same as that for goods sold, or for use and occupation. The form of action may be the same, but the cause is quite different. Nor is the agreement for the amendment sufficiently made out to warrant us in allowing it. There is a controversy between the parties in regard to it, and we cannot undertake to enforce an agreement of this kind which is not clearly established. The amendment therefore must be disallowed.
At the time the first suit was brought, which was April 15th, 1846, there was due the plaintiff, for work done on the Northern railroad, exclusive of that done on theKenniston land, the sum of $390.62. There was also due him at the time $117, as found by the auditor, for the use and occupation of a house and furniture, and for a single sleigh. This latter sum, however, cannot be recovered in this suit, because there is no count in the writ therefor; the additional counts not being received in amendment.
The amount of $213.56, being the sum claimed for work done on the Kenniston land, cannot be recovered in this action, because it was done on a special contract which was- not then terminated, nor the work completed. The agreement is as follows: “ February 9th, 1846. This certifies that I, William Phelan, have agreed to pay Joseph C. Thompson, nine and a half cents per yard for raising the embankment across Jonathan Kenniston’s intervale, and what gravel is borrowed, to be taken from the hill in Kenniston’s field, nearest the grade.” The auditor finds that, at the time this agreement was entered into, it was further agreed that the plaintiff should be paid at the end of each month, for the work done upon the contract. But the evidence proving this, was excepted to at the time, and rightly so, we think. There is no latent ambiguity in the agreement, that [348]*348can admit of ■ parol proof to show the time of payment. The doubt is upon the face of the paper itself; and no time being fixed, the inference of law is, that the payment shall be made when the work is done. The report finds that the work was not done or abandoned till May succeeding the commencement of the action. The extent of the plaintiff’s claim then, which can be allowed in this suit, is $190.62,-with the interest thereon. Casting the interest from the date of the writ to the time of the auditor’s report, it amounts to the sum of $235.60.
At the time of the commencement of the action, the defendant had an account against the plaintiff consisting of several small items, amounting in all to the sum of $45.55, which is properly allowable in off set against the plaintiff’s claim. He had also paid the plaintiff $20 in March preceding, and on the day succeeding the suit, $25 more. These two sums the auditor finds were paid expressly for the work done'on the Northern railroad, and should therefore go in reduction of the $235.60. Adding the sum of $45.55 to the two sums of $20 and $25, and casting interest upon thé amount of the three, from the date of the writ to the time of the auditor’s report, they amount to the sum of $111.91. In addition to this sum, there was due the defendant at the time of the report, on a note given him by the plaintiff, the sum of $105.99. These are the only sums which can be legally applied in reduction of the plaintiff’s claim. They amount to $217.90, and being taken from $235.60, the amount recoverable by the plaintiff, there is left the balance of $17.70 ; for which the plaintiff should have judgment, with interest from the date of the auditor’s report.
The payments on general account, amounting to $280, will be considered in the next case, and the reasons given for not allowing any portion of them in the first action.
The second suit was commenced October 27th, 1847. In this action the plaintiff’s specification was for the sum of $536.85. None of the sums claimed in the first suit were embraced in this specification. An item of $148.68, was, however, included for shoveling and hauling earth on Kenniston’s land. But this sum [349]*349is for work done after the commencement of the former suit, and is no part of the $213.56 claimed in that suit for similar work. The auditor finds due the plaintiff on his specification, the sum of $448.03. This includes the item of $148.68. He further finds that the plaintiff was entitled to the sum of $362.24 for the whole work done on the Kenniston land, and that, if nothing was allowed him in the former suit for that work, on the ground that the action was prematurely brought, then the sum of $237.50 should be substituted for the $148.68. This being done, as nothing was allowed in that suit for this work, it brings the amount up to the full claim of the specification, namely, $536.-85. Had the plaintiff’s specification been sufficiently large, the auditor would no doubt have found due him the whole amount of the $362.24. But it appears that he did not feel authorized, as the case was presented, to go beyond the amount claimed by the specification. Consequently the sum of $124.74, being the balance of the $362.24, after taking from it the sum of $237.50, is left, and not recoverable in this suit.
From the anomalous situation of the two suits, we have the item of $117, for the use of the house and furniture and the price of the sleigh, and also the item of $124.74, for work done, which are not recoverable in either action; and this, notwithstanding the auditor finds them both to be due. Unless, therefore, some of the payments made by the defendant on general account, as found by the auditor in his first report, can be legally applied to the satisfaction of these two sums, the parties will be left to a further litigation in regard to them.
The accounts and claims between the parties which have not been disposed of in the previous consideration of the two cases stand thus: —
Due the plaintiff, and recoverable in this suit, $536.85
Due him for rent of house, &c., not recoverable, 117.00
Due him for balance of work on Kenniston land, not recoverable, 124.74
$778.59
[350]*350Due the defendant for items of set-off accruing subsequent to first suit, and recoverable in this, $26.43
Due him for cash paid on general account, to be legally and equitably applied in reduction of plaintiff’s claims; 280.00
$306.43
Balance due the plaintiff, $472.16.
Such would be the amount due the plaintiff were there no action pending between the parties. This result, therefore, we shall endeavor to produce if it can legally be done.
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Eastman, J.
In deciding these two cases, it is necessary that they be considered somewhat in connection. We will, however, take them up in the order of time, and pass upon the questions as raised by the auditor.
The first question presented, is, whether the amendment proposed to be made to the first suit is admissible. The writ contains but one count, and that is a general one, for labor and services. The plaintiff moves to amend his writ by adding two new counts ; one for goods, wares, and merchandise sold and delivered, and the other for the use and occupation, by the defendant, [347]*347of the plaintiff’s dwelling-house. Our 14th Rule of Court provides, that no new count or amendment of a declaration shall be allowed without the consent of the defendant, unless it be consistent with the original declaration, and for the same cause of action. By this rule it is clear that this amendment cannot be allowed, except by the agreement of parties. It cannot be pretended that the cause of action for work and labor is the same as that for goods sold, or for use and occupation. The form of action may be the same, but the cause is quite different. Nor is the agreement for the amendment sufficiently made out to warrant us in allowing it. There is a controversy between the parties in regard to it, and we cannot undertake to enforce an agreement of this kind which is not clearly established. The amendment therefore must be disallowed.
At the time the first suit was brought, which was April 15th, 1846, there was due the plaintiff, for work done on the Northern railroad, exclusive of that done on theKenniston land, the sum of $390.62. There was also due him at the time $117, as found by the auditor, for the use and occupation of a house and furniture, and for a single sleigh. This latter sum, however, cannot be recovered in this suit, because there is no count in the writ therefor; the additional counts not being received in amendment.
The amount of $213.56, being the sum claimed for work done on the Kenniston land, cannot be recovered in this action, because it was done on a special contract which was- not then terminated, nor the work completed. The agreement is as follows: “ February 9th, 1846. This certifies that I, William Phelan, have agreed to pay Joseph C. Thompson, nine and a half cents per yard for raising the embankment across Jonathan Kenniston’s intervale, and what gravel is borrowed, to be taken from the hill in Kenniston’s field, nearest the grade.” The auditor finds that, at the time this agreement was entered into, it was further agreed that the plaintiff should be paid at the end of each month, for the work done upon the contract. But the evidence proving this, was excepted to at the time, and rightly so, we think. There is no latent ambiguity in the agreement, that [348]*348can admit of ■ parol proof to show the time of payment. The doubt is upon the face of the paper itself; and no time being fixed, the inference of law is, that the payment shall be made when the work is done. The report finds that the work was not done or abandoned till May succeeding the commencement of the action. The extent of the plaintiff’s claim then, which can be allowed in this suit, is $190.62,-with the interest thereon. Casting the interest from the date of the writ to the time of the auditor’s report, it amounts to the sum of $235.60.
At the time of the commencement of the action, the defendant had an account against the plaintiff consisting of several small items, amounting in all to the sum of $45.55, which is properly allowable in off set against the plaintiff’s claim. He had also paid the plaintiff $20 in March preceding, and on the day succeeding the suit, $25 more. These two sums the auditor finds were paid expressly for the work done'on the Northern railroad, and should therefore go in reduction of the $235.60. Adding the sum of $45.55 to the two sums of $20 and $25, and casting interest upon thé amount of the three, from the date of the writ to the time of the auditor’s report, they amount to the sum of $111.91. In addition to this sum, there was due the defendant at the time of the report, on a note given him by the plaintiff, the sum of $105.99. These are the only sums which can be legally applied in reduction of the plaintiff’s claim. They amount to $217.90, and being taken from $235.60, the amount recoverable by the plaintiff, there is left the balance of $17.70 ; for which the plaintiff should have judgment, with interest from the date of the auditor’s report.
The payments on general account, amounting to $280, will be considered in the next case, and the reasons given for not allowing any portion of them in the first action.
The second suit was commenced October 27th, 1847. In this action the plaintiff’s specification was for the sum of $536.85. None of the sums claimed in the first suit were embraced in this specification. An item of $148.68, was, however, included for shoveling and hauling earth on Kenniston’s land. But this sum [349]*349is for work done after the commencement of the former suit, and is no part of the $213.56 claimed in that suit for similar work. The auditor finds due the plaintiff on his specification, the sum of $448.03. This includes the item of $148.68. He further finds that the plaintiff was entitled to the sum of $362.24 for the whole work done on the Kenniston land, and that, if nothing was allowed him in the former suit for that work, on the ground that the action was prematurely brought, then the sum of $237.50 should be substituted for the $148.68. This being done, as nothing was allowed in that suit for this work, it brings the amount up to the full claim of the specification, namely, $536.-85. Had the plaintiff’s specification been sufficiently large, the auditor would no doubt have found due him the whole amount of the $362.24. But it appears that he did not feel authorized, as the case was presented, to go beyond the amount claimed by the specification. Consequently the sum of $124.74, being the balance of the $362.24, after taking from it the sum of $237.50, is left, and not recoverable in this suit.
From the anomalous situation of the two suits, we have the item of $117, for the use of the house and furniture and the price of the sleigh, and also the item of $124.74, for work done, which are not recoverable in either action; and this, notwithstanding the auditor finds them both to be due. Unless, therefore, some of the payments made by the defendant on general account, as found by the auditor in his first report, can be legally applied to the satisfaction of these two sums, the parties will be left to a further litigation in regard to them.
The accounts and claims between the parties which have not been disposed of in the previous consideration of the two cases stand thus: —
Due the plaintiff, and recoverable in this suit, $536.85
Due him for rent of house, &c., not recoverable, 117.00
Due him for balance of work on Kenniston land, not recoverable, 124.74
$778.59
[350]*350Due the defendant for items of set-off accruing subsequent to first suit, and recoverable in this, $26.43
Due him for cash paid on general account, to be legally and equitably applied in reduction of plaintiff’s claims; 280.00
$306.43
Balance due the plaintiff, $472.16.
Such would be the amount due the plaintiff were there no action pending between the parties. This result, therefore, we shall endeavor to produce if it can legally be done.
The law governing the application of payments may be regarded as well settled in this State. Parks, Baldwin, & Parks v. Ingram & Parks, ante, page 283. A debtor paying'money to a creditor, who has several claims against him, may direct the application of the payment to which claim he pleases. If the debtor makes no such application, the creditor may, at the time, apply it to any lawful demand then due and payable. But where neither of the parties makes the application, the law will, where there is no particular equity or reason for a different' course, apply the payment to the earliest debt then due. Caldwell v. Wentworth, 14 N. H. Rep. 431. A further principle is, that, in making the application, the principles of equity are recognized at law, so far as the nature of the proceedings will admit. Merrimack County Bank v. Brown, 12 N. H. Rep. 321.
Of the $280 which were paid by the defendant upon general account, it does not appear that any application was made by either party; and, proceeding upon the principles above laid down, so much of the same as is necessary, should first be applied to the extinguishment of the item of $117, that being the oldest claim due at the time the payments were made. Taking therefore the first and second items of payment, being $87, and $80 of the third item, which was paid May 1st, 1846, and they cancel the $117. Had it not been for this item of $117, the two items of payment amounting to $37, being both made prior to the commencement of the first suit, would have been allowed in that action. But upon both legal and equitable principles we think they should be applied as above stated.
[351]*351The next oldest claim due, independent of those considered and disposed of in the former suit, is the item of $2, the first in the plaintiff’s specification ; and then the claim for the labor on the Kenniston land. Taking the two reports of the auditor together, the labor on that land must be regarded as terminated, and the payment for it due, May 1st, 1846. On said 1st of May, the defendant made a payment of $150, eighty dollars of which has been heretofore applied towards the item of $117. The $70 which are left of the $150, and also the payment of $15, made on the 14th of May, and $41.74 of the payment made July 10th, 1846, making in all the sum of $126.74, must be applied to the satisfaction of the item of $2, and the item of $124,74, part of the amount due for the labor on the Kenniston land. To take any portion of the payments made on the 1st and 14th of May, or 10th of July, and apply it to affect in any way the first action, when that action was commenced some time previous, and when also there were other sums due, at the time of the payments, that had accrued subsequently to that suit, would be a departure from the principles above recited.
Having deducted, as cancelled by payment, the first item in the plaintiff’s specification, being $2, there is left the sum of $534.85. Against this there should be allowed the balance of the payment of $50, made on the 10th of July, being $8.26 ; also the three remaining payments made on general account, which amount to $28 ; and also the defendant’s set-off of $26.-43; which several sums amount to $62.69. Deducting this from the $534.85, there is left the sum of $472.16, for which the plaintiff should have judgment, with interest from the date of the auditor’s report.
Although these cases, upon first examination, appeared involved in some perplexity, and some labor would have been saved, had the writs contained a few more counts, yet we are satisfied that the conclusion to which we have arrived, is sustained by both legal and equitable principles, and that substantial justice is done between the parties. Both are allowed all that was their due.
Judgment for the plaintiff.