DEPEND ble. ANTS. him, he is personally liable (q); but this liability must be collected from the instrument upon a reasonable exposition of the whole of its terms (r). So, if a person being an agent act as a principal, and do not disclose his 1. Who leprincipal, or declare that he acts as agent at the time of making a verbal gally liacontract, and the credit be given expressly to him, he will be personally responsible ($)(1). The master of a ship is in general liable for necessaries [ 36 ] furnished abroad(t), or in this country, unless they were furnished upon the Agents, credit of the owners (u); and he or the owners may be sued upon the bill of lading, or generally, for the loss of goods, unless there has been an express contract with the owners (x) (2) and it seems that a policy broker alone can be sued for the premiums of insurance (y). Where an agent does not pursue in any degree the principal's authority(z); or so far exceeds it as to discharge the principal from responsibility for his acts (a); or where he acts under an authority, which he knows the principal has no right to give, as an agent selling property under a notice that it does not belong to his principal; he is personally responsible (b). There is a material distinction between an action against an agent for the recovery of damages for the non-performance of the contract, and an action to recover back a specific sum of money received by him; for when a contract has been rescinded, or a person has received money as agent of another who had no right thereto, and has not paid it over, an (q) 2 East, 142. 6 T. R. 176; 1 T. R. 675. 15 East, 62; 6 Taunt. 147. 1 Marsh. 500. (r) 5 Moore, 270. 5 Taunt. 374, 387. (s) 3 Campb. 817. 15 East, 63, 66. 12 Ves. 362. Payl. 246. Peake, C. N. P. 120. 1T. R. 181. 7 T. R. 359. Burr. 1921. (1) Cowp. 639. 7 T. R. 312. (*) Abbott on Shipping, 1st edit. 95. &c. (1) Allen v. Rostain, 11 Serg. & Rawle, 375. If the seller of goods, knowing at the time that the buyer, though dealing with him in his own name, is in truth the agent of another, elect to give the credit to such agent, he cannot afterwards recover the value against the known principal; but if the principal be not known at the time of the purchase made by the agent, it seems that when discovered, the principal or the agent may be sued at the election of the seller; unless where by the usage of trade, the credit is understood to be confined to the agent so dealing; as particularly in the case of principals residing abroad. Patterson v. Gaudasequi, 15 East, 62. Et Vide Mauri v. Heffernan, 13 Johns. 58. Jaques v. Todd, 3 Wend. 83. Lincoln v. Battelle, 6 Ib. 475. Pentz v. Stanton, 10 ib. 271. Tradesman's Bank v. Astor, 11 Wend. 87. Jeffrey v. Bigelow, 13 Ib. 518. (2) The plaintiff has his election to sue either the one or the other, unless there were a special promise from either, in which case the other is discharged. Garnham v. Bennett, Str. 816. Farmer v. Davies, 1 Term. 108. Unless there is some special contract, the master is in every case personally responsible upon all the contracts, which he makes in reference to the employment, repairs, supplies and navigation of the ship. See Watkins . Laughton, 8 Johns. 164; Elliott v. Russell, 10 Johns. 1; Dakey v. Russell, 18 Martin. The master is liable for repairs and necessaries ordered by him, whether at home or abroad. James v. Bixby, 11 Mass. 34; Marquand v. Webb, 16 Johns. 89; Leonard v. Huntington, 15 Johns. 298. If there is a special promise of the master taken and relied upon, the owner is not liable; and on the other hand, if there is a special promise of the owners, the master is not liable. Hussey v. Allen, 6 Mass. 163; Chapman v, Durant, 10 Mass. 47; James v. Bixby, 11 Mass. 34; Wainwright v. Crawford, 8 Yeates, 131; Farrell v. M'Clea, 1 Dall. 396; Schermerhorn v. Lomas, 7 Johns. 311; Marquand v. Webb, 16 Johns. 89; Muldon v. Whitlock, 1 Cowe1, 29; Thorn v. Hicks, 7 Cowen, 597; Nickerson v. Monsoon, 5 Law Rep. 416. II. DEFENDANTS 1. Who le gally lia ble. Agents, &c. action may be sustained against the agent to recover the money (1); and the mere passing of such money in account with his principal, or making a rest, without any new credit given to him, fresh bills excepted, or further sums advanced to the principal in consequence of it, is not equivalent to a payment of the money to the principal (c). But, in general, if the money be paid over before notice to retain it, the agent is not liable (d)(2), unless his receipt for the money was obviously illegal, or his authority was wholly void (e)(3). Where persons received money for the express purpose of taking up a bill of exchange two days after it became due, and upon tendering it to the holders, and demanding the bill, find that they have sent it back, protested for non-acceptance, to the person who indorsed it to them, it was held, that such persons, having received fresh orders not to pay the bill, were not liable to an action by the holders for money had and received, when, upon the bill being procured and tendered to them, they refused to pay the money (f). A person, who, as a banker or agent, receives money from A. to be paid to B., and to other different persons, cannot in general be sued by B., for his share, unless he has expressly agreed to [37] appropriate the money to the purpose for "which it was sent (g). Nor can an action for money had and received be maintained against a mere bearer of money from one person to another (h); or a mere collector or receiver who has bona fide paid it over (i); or against churchwarden to recover back dues which, before the commencement of the action, had been paid over to the trustees of a chapel, for whom it was received (k); or against an arbitrator to recover money deposited with him by a bankrupt, subject to an award, and which money the arbitrator bona fide paid over to the person whom he thought entitled to receive it, before the issuing of the commission, and without notice of the act of bankruptcy (1). But auctioneers and stakeholders are considered in the light of trustees for both parties, and are bound to retain the money deposited with them, until it be ascertained which of the parties is entitled to receive them (m). The agents of government are not in general liable upon contracts avowedly entered into by them in their official capacity (4). Thus, neither the governor of a fort or colony (n), nor a military commissary (o), nor the captain of a regiment (p), or ship (9), is liable for goods ordered by him (c) 3 M. & Sel. 344; Cowp. 565; Stra. 480; 5 Taunt. 815. (d) Cowp. 565; Burr. 1986; Ld. Raym. 1210; 4 T. R. 553; Stra. 480; Bul. N. P. 134; 10 Mod. 23; 2 Esp. Rep. 507; 5 Moore, 105; 8 Taunt. 737. (e) 1 Campb. 396, 564; 3 Esp. Rep. 153; 1 Stra. 480; Cowp. 69; 1 Taunt. 359. (f) 1 Moore, 64; see 14 East, 582, 590; 2 Bing. 7; 9 Moore, 34, S. C. (g) 14 East, 582; 7 Taunt. 339; 1 R. & M. 68; 3 Cromp. & J. 83; 1 Marsh. Rep. 132. (1) Vide Campbell v. Hall, Cowp. 204. Hardacre v. Stewart, 5 Esp. 103. Hearsay v. Pruyn, 7 Johns. 170. Whitbread v. Brooksbank, Cowp. 69. (2) Vide Carew v. Otis, 1 Johns. 418. (3) Or the payment was compulsory, and not made expressly for the use of the principal. Ripley v. Gelston, 9 Johns. 201; Mowatt v. M'Clellan, i Wend. 173; Mitchell v. Bristol, 10 ib. 492. (4) See ante, 85, note. п. DEFEND ble. ANTS. for the public service, in cases where he does not expressly pledge his individual credit and responsibility. Nor is the secretary of war liable to a retired clerk of the war office for his retired allowance, although such allowance was included in certain funds received by the defendant in his 1. Who leofficial character (r). Nor are justices of the peace, contracting on behalf gally liaof the public for rebuilding a public bridge, under the provisions of an act Agents, of parliament which provides a fund for the payment, liable to the con- &c. tractor (s); and it seems that where a servant of the crown expressly contracts on account of government, he is not responsible, although the agreement be under seal (t). In Horsley v. Bell (u), a bill having been filed by the plaintiff, the undertaker of a navigation, against the commissioners named in the act for carrying it on, who had signed the several orders, it was contended, first, that the defendants were not personally liable, because they were exercising a public trust, and the credit was given to the undertaking itself, and not personally to them, and the remedy was therefore in rem; secondly, that those who had been present at the meetings, and had signed some, but not all the orders, were liable only to those which they had respectively signed. But Lord Chancellor Thurlow, assisted by Ashhurst and Gould, Justices, held, first, that the commissioners were personally liable; [ 38 ] and, secondly, they were all liable in respect of all the orders. Lord Thurlow said, "Who would make a contract on the credit of toll, which it is in the power of the commissioners to raise, or not, at their pleasure? Then upon whose credit must the contract be? Certainly that of the commissioners who act. It is their fault if they enter into contracts when they have no money to answer them. They have made themselves liable by their own acts.' And this doctrine was confirmed in the recent case of Eaton v. Bell (x). It appeared that an enclosure act empowered the commissioners to make a rate to defray the expenses of passing and executing the act; and enacted, that persons advancing money should be repaid out of the first money raised by the commissioners. Expenses were incurred in the execution of the act before any rate was made. To defray these expenses, the commissioners drew drafts upon their bankers, requiring them to pay the sums therein mentioned, on account of the public drainage, and to place the same to their account as commissioners. The bankers, during a period of six years, continued to advance considerable sums, by paying drafts; and it was held, that the commissioners were personally responsible to the bankers for the drafts so made. And a churchwarden, who employs a person to make a plan of the church, in order that the plan may be laid before certain commissioners for building new churches, is personally liable to such person (y). These cases appear to have been decided upon the ground that the several parties sued had within their reach the means of indemnifying themselves by making rates, or out of funds in their hands or power (2). And it has been decided that vestrymen, who at a vestry meeting sign a resolution ordering the parish surveyor to take steps for defending an indictment for not repairing a road, II. DEFEND ANTS. 1. Who are not liable to the attorney employed by the surveyor; because the conduct of the business relative to the road was more peculiarly the province of the surveyor, who could have afterwards charged the parish in his aclegally lia- count, and been reimbursed by a regular parish rate (a). The surveyor of a turnpike road employed by and acting by order of commissioners, appears not to be liable to persons who perform work in repairing the road; for in such case the surveyor is to be viewed in the light of a mere servant of the commissioners (b). ble. Agents, &c. Where the agent does not, at the time the contract is made, disclose that he is acting merely as an agent, and the principal is unknown, the latter may, when discovered, be sued upon the agreement (c). And the [ 39 ] principal is also responsible for the price of goods ordered by his agent, who disclosed that he was acting merely as such, but did not express who his principal was, although the vendor had actually debited the agent without inquiring the name of his employer; for in such case the vendor cannot be considered to have had the means of electing finally to give credit to the agent only (d). Partners, common, But the principal is not liable upon the contract of his agent, if the other party to the agreement, with full knowledge of the facts, and the power and means of deciding to whom he will give credit, elect to give credit to the agent only, in his individual character (e) (1). At law, one partner or tenant in common cannot in general sue his cotenants in partner (2) or co-tenant, in any action in form ex contractu (ƒ); but must &c. suing proceed by action of account (g), or by bill in equity (3). This rule is each other. founded on the nature of the situation of the parties, the difficulty at law of adjusting complicated accounts between them, and the propriety, arising from the supposed confidence reposed by the parties in each other, of their being examined upon oath, which can only be effected in a Court of equity. Therefore, in the case of a partnership, whether it be a general or particular partnership, one partner cannot at law recover his share of money received by the other on account of the firm, unless on a final balance of all accounts a particular sum be found due to one partner, which (a) 3 Bing. 378. (b) 1 Bla. Rep. 670. As to liability of trustees of a turnpike road, 10 Bing. 283. The subscribers who attend a committee of a hospital are liable to the creditors of such hospital, 7 Bing. 705. (c) 15 East, 67; 4 Taunt. 576, note. Per Lord Tenterden, 9 B. & C. 86. See ante, 34, 35, 36. (d) 9 B. & C. 78. (e) 15 East, 62; 4 Taunt. 574; 9 B. & C. 89, 90. (f) 2 T. R. 428; 2 B. & P. 124; 4 East, 144; 4 Esp. R. 182; 2 Marsh. 319, 324; 1 B. & C. 74; 8 Id. 345; 2 Crom. & Mees. 861; 2 Bing. N. C. 108. But a partnership must have been actually formed, 3 B. & C. 814. (g) Bac. Ab. Account, Willes, 208. (1) See ante, 35 a. n. (1). Petapsco Ins. Co. v. Smith, 6 Har. & Johns. 171; Westmore land v. Davis, 1 Alabama N. S. 299; French v. Price, 24 Pick. 13. Abbott on Shipping, (6th Am. ed.) 135, 136, note. (2) Murray v. Bogert, 14 Johns. 318; Beach v. Hotchkiss, 2 Conn. 425; Walker v. Long, 2 P. A. Browne, 125; Ozeas v. Johnson, 4 Dall. 434; 1 Binn. 194; Young v. Brick, 2 Penn. 663; Course v. Prince, 1 Const. Ct. 413; Kennedy v. M'Fadon, 3 Har. & Johns. 194. Aliter in Massachusetts, Brigham v. Eveleth, Jones v. Harraden, 9 Mass. 538, 510; Bond v. Hays, 12 Mass. 34; Wilbey v. Phinney, 15 Mass. 112; Fanning v. Chadwick, 3 Pick. 420; Brinley v. Kupfer, 6 Pick. 179; Westerlo v. Evertson, 1 Wend. 532; Farr v. Smith, 9 Wend. 338. (3) Vide Niven v. Spickerman, 12 Johns. 401; Ozeas v. Johnson, 1 Binn. 191. the other expressly promises to pay (h) (1) (2); or unless there be an express covenant to account, &c. (i) II. DEFEND ANTS. 1. Who le &c. suing It has been held that assumpsit for money had and received may be. maintained against one who had been a member of a benefit club, for gally liamoney intrusted to his keeping by the rest of the society, in the name of ble. the officers properly appointed for managing their affairs, under the arti- Partners, cles (k) (3). So one joint contractor who pays money for another, the each other. whole of which, or a particular part of which the latter had engaged to pay, may recover it from the other as money paid to his use (7)(4), and if one of two joint contractors refer the claim of a third person to damages upon the contract to arbitration, and pay over the sum awarded to the claimant, he may sue his co-contractor for money paid (m). In the case, however, of a general unsettled account between partners, one who has been compelled to pay the whole of a creditor's demand cannot sue his co-partner at law (n). In the case of a personal chattel, or of trees severed from the land, "if [ 40 ] one or two more joint-tenants, or tenants in common, by the sale thereof, convert the thing into money, the joint interest is determined, and each hath a separate interest for a sum certain, and may support money had and received against the other (o) (5); and one partner may maintain an action for money had and received, against the other partner for money received to the separate use of the former, and wrongfully carried to the (h) 2 T. R. 478; 2 Bing. 170; 3 Bing. 55, 56; 6 B. & C. 149. See 1 Holt, 368. (i) 2 T. R. 482; 7 Mod. 116; 13 East, 8, 538; 2 Crom. & Mees. 361; 1 Bing. N. C. 399; 2 Bing. N. C. 108. (k) 6 Price, 131. (1) 6 Taunt. 289; 1 Marsh. 603; 1 East, 29; 8 T. R. 614; Rol. Abr. Action sur le Case, 24, pl. 31; 3 Camp. 168. (m) 4 Moore, 340. (n) 1 Stark. 78, 79. (1) Vide Casey v. Brush, 2 Caines, 293; Halsted v. Schenelzel, 17 Johus. 80; Westerlo c. Evertson, 1 Wend. 532; Course v. Prince, 1 Const. 416. There need not be an express promise in Pennsylvania. The action may be maintained if the accounts have been settled and a balance struck, which must be the act of both parties. Ozeas v. Johnson, 1 Binn. 191; Lamalire v. Caze, 1 Wash. C. C. 431. So, if one partner covenant to pay all debts due from the partnership, he is liable for a debt due from the partnership to one of the other co-partners. Hobart v. Howard, 7 Mass. 304; Clough v. Hoffman, 5 Wend. 499. But it seems, that in Pennsylvania since the act of 4th April, 1831, a claim for a balance arising from partnership transactions, may be set off in assumpsit, though such balance has not been ascertained by auditors in an action of account. M'Faddan v. Erwin, 2 Whart. 37. (2) Where a balance has been struck between partners, an action lies without an express promise to pay such balance. Wray v. Milestone, 5 M. & W. 21. See Williams v. Henshaw, 11 Pick. 82, S. C.; 12 Pick. 378; Clark v. Dibble, 16 Wend. 603; Sally v. Capps, 1 Alabama, N. S. 121; Barger v. Collins, 7 Har. & Johns. 213; Chase v. Garvin, 19 Maine, 211; Gibson #. Moore, 6 N. Hamp. 547. Collyer, Partn. (Perkins's ed.) § 281, note and cases cited; where will be found the law as held in the several states upon this subject. (3) The decision in this case (Sharpe v. Warren, 6 Price, 181) can only be sustained on the ground that the Act of Parliament vested the right to sue in the officers of the society. When a board of directors consists of sixteen, a joint action against four of the number cannot be maintained. Franklin Fire Ins. Co. v. Jenkins, 3 Wend. 130. And no action lies by one partner against another, except there has been a settlement of accounts, and promise to pay the balance. Niven v. Spickerman, 12 Johns. 401. (4) Johnson v. Johnson, 11 Mass. 359; Bachelder v. Fiske, 17 Mass. 464; Keith v. Easton, 21 Pick. 261, 262; Wiggin v. Suffolk Ins. Co. 18 Pick. 145, 153. Co-trespassers are not entitled to contribution from each other. Campbell v. Phelps, 1 Pick. 62, 65; Vose v. Grant, 15 Mass. 505, 521. (5) Vide Selden v. Hickok, 2 Caines, 166. One tenant in common cannot maintain assumpsit against his co-tenant, or the guardian of his co-tenant, or the agent of such guardian, for a portion of the rent received by either. The only remedy is, by action of account, or bill in equity. Sherman v. Ballou, 8 Cowen, 304. One tenant in common cannot, like a partner, sell the whole interest of his co-tenant. If he do so, trover lies by the other. Hyde v. Stone, 9 Cowen, 230. A tenant in common cannot recover for repairs to the land, without a previous |