CH. 9. 9 Mass. R. 273, Free man v. W. $ 6. So a public agent who engages for the public is not liable generally &c. This was assumpsit by the master of a revenue-cutter, for the care of his vessel, and services of himself and men; and for money had and received &c. Facts. Jos. Otis, a collector of the United States in Barnstable, was infirm, and incapable of business, and his son, the deft., did the business of his office, and had the whole control and management of it, as deputy-collector, except, for the most part, official papers and accounts were in his father's name, and signed by him. Feb. 2, 1809, the deft. proposed to the plt. to charter or hire his schooner Betsey, as a revenue-cutter, and to employ him as master, with such men as he, the plt., should engage and employ as part of the crew; the deft. reserving to himself a right to engage a mate and the rest of the crew, to be attached to the customhouse, and in permanent service for six months, the vessel at $180 a month, and the master and crew at the stated wages in the revenue-cutter. These terms the plt. accepted, and the bargain was closed: Thirty-six days after, the plt. and crew were discharged by the deft., who said, he would pay for their services when furnished with the money, as the witnesses understood it. The plt's. account was rejected at the Federal treasury, on the ground the deft. had stated the plt. had been paid for all services. The said proposals were in pursuance of directions from the treasury, dated Jan. 16, 1809. In April or May, the deft. received $1000 from the treasury to pay revenue-cutters ; there, however, was some evidence, part of this sum was received in Feb., and had been applied to pay revenuecutters previously employed. The deft's. letters to the secretary of the treasury were to shew the hiring &c., for which the plt. demanded payment, were only a proposal on the plt's. part, and not a conclusive contract. Jury found a contract of, and a verdict for, money had and received. The court held, "that where a public agent makes a contract in the name and behalf of the government, it is a point well settled, that the agent is not liable to the action of the party contracted with, who must look to the government; but if such agent should deny to the government that he had entered into such contract, and by such interference prevent the party from his remedy as against the government, he must be personally liable, as he has in his conduct, in effect, disavowed his acting in character of a public agent." So the verdict for the plt. is right. Quare, if the jury believed the deft. had received from the treasury monies intended to meet the plt's. demand, and he had refused to pay it over, they were correct in their verdict for monies had and received. What a public agent may give in evidence, Cabot's case. CH. 9. Art. 18. Jackson. 7. This was covenant broken against the agent of the Massachusetts State Prison, on a covenant to furnish the plt. the labour of from twenty to forty convicts for one year, in plating and harness-making &c., and to furnish stock monthly, 9 Mass. R. and provide tools &c., and to give the plt. the same power 490, Davis v. over them as the assistant keeper had. The plt. was faithfully to superintend them &c., and have half the profits. When the agent made the contract, he had power to do it, but he failed to perform. Held, he was not liable. Deft's. second plea was, that he was agent &c., and as such, and not otherwise, he made the contract &c., hoc paratus. Promise to pay another's debt raised by law is not within the statute of frauds. See Goodwin v. Gilbert, Ch. 32, a. 4. The agent's power depends on his commission, not on what he professes on the face of his acts. 5 Wheaton 236. Assumpsit on several promissory notes made by agents. 11 Mass. R. And held, if one make a contract in writing, intending to act 27, Stackpole jun. v. Aras agent and bind his principal, it must appear in the con- nold Welles tract itself, he acts as agent, and parol evidence is not admissi- 105. ble to contradict, vary, or affect materially by way of explanation any written contract, within the statute of frauds or not, if the contract be perfect in itself, and is capable of a clear exposition from its terms. But yet the deft. may shew by parol evidence a want of consideration for a promissory note, in a suit between the original parties to it, or illegality or fraud in the transaction; nor does the rule extend to receipts. 3 East 147, Wyatt v. Hertford. 8. The plt. had an account for work &c. against the deft., and presented it to his steward, Hunt, for payment, receipted it as received of the deft., and took Hunt's own check for it, on a banker; this he refused, and also a second like check. Hunt failed; then the plt. applied to the deft. for payment, who refused on the ground, Hunt had sufficient funds of the deft's. to pay &c., and went off in his debt. Held, the deft., the principal, was liable; as it did not appear he was prejudiced by Hunt's (his agent) giving his checks &c., but if it had appeared, the deft. had, in the mean time, inspected his accounts, and had dealt with him on the ground he actually paid, as the receipt imported, then the deft. would have been discharged. And see several cases, Master and Servant, Ch. 47. Farmer v. Davis. See Cushman v. Loher, where the act of the Ward v. Filprincipal confirms that of the agent, Ch. 80, a. 1, s. 9, 10; ton, Ch. 33, and Floyd v. Day, Ch. 9, a. 19, 22, where the agent compromised the principal's debt. 9. An agent received goods on condition to pay to B a certain sum out of the first proceeds. This acceptance the principal approved. Held, the agent was bound to pay B said sum, though the principal had previously assigned the goods See also a 2. 1 Johns. Cas. 205, Neilson . Blight.See Ch. 47, a. 5,5 13 2 Phil. Evid. 14, 15. Сн. 9. to C, without the agent's knowledge. This payment to B was Art. 18. the condition of the first sale. See Salter v. Field, goods bought by an agent attached &c. 2 Johns. Cas. 424, Armstrong & al. v. Gilchrist, Ch. 47, a. 5, s. 13. 7 Johns. R. 179, 183. 3 Dallas 87, 12 Mass. R. 183, 180, Stevens v. Robins. 12 Mass. R. ard v. Lie now. § 10. An attorney or agent received of his principal C's note to him to collect, and C being considered insolvent and having absconded, D, in his behalf, offered to pay 13s. 4d. in the pound of the debt. The principal made no objection to this offer, and the agent afterwards settled with D accordingly. Held, the agent was answerable to his principal only for the sum received of D. The principal's silence amounted to his assent to D's offer. See Carew v Otis, 1 Johns. R. 418, and 4 Johns. R. 377. If an agent pay over money after notice, he is liable &c. If he receive only a moiety of the proceeds of a prize, he is answerable for no more &c., Briggs & al. v. Lawrence. Agent's receipt for goods binds the principal. See also Ch. 47, a. 5, s. 13, Gibson v. Colt & al. See Principal and Agent, Ch. 1, a. 16, s. 4. 11. Replevin for 8756 hides; held, if one as agent contract for the purchase of goods, and part only delivered to him, and he received from his principal more money than the part delivered cost, including charges; he may hold more of the money to indemnify himself for his engagements on account of a part not received, he had a lien on the hides or leather in his hands to answer his engagements. 12. Assumpsit for money laid out &c. The owners of a 11, 14, Pack- privatecr valued at $25,000 in twenty-five shares, paid their agent that amount; but this was not sufficient to fit her out. They directed him to dispose of additional shares, and get her to sea immediately. Shares could not be sold. Plt., the agent, advanced his own money and sent her to sea. Held, the owners were severally liable to reimburse him his advances over the $1000 a share. 12 Mass. R. 60, 65, Clement v. 13. Replevin for thirty-one boxes of sugar, marked &c. Here was a sale by one assuming to be an agent, but not havJones & al. ing sufficient power to make sale, may be rendered valid by the subsequent act of the owner, amounting to an adoption of the sale. The plt. wrote to one of the house which sold the sugar, that he expected to be paid immediately the proceeds of the sale, and drew a bill accordingly. The known rule is, "that subsequent adoption of an act done by one assuming to be an agent, is equal in its effect to a precedent authority." 12 Mass. R. 173, 176, Afridson v. Ladd. 14. Assumpsit on a special contract &c. "It is mutually agreed between Wm. Ladd and Andrew Afridson, that the said Andrew Afridson shall proceed to Alexandria, district of Columbia, to act as flag-captain of a schooner belonging to J. G. Ladd, which is to be immediately fitted and sent to sea; CH. 9. Art. 18. Back. -5 East. 148. and the said Wm. Ladd agrees to allow the said Andrew A., for his services on board said vessel, sixty dollars per month, to commence the day after his arrival at Alexandria, and to pay his travelling expenses there; and the said Wm. Ladd agrees to allow the said Andrew A. five barrels privilege in the said schooner;" signed by both parties, and dated at Boston, Feb. 3, 1813. Wm. Ladd, it seems, meant to contract for 2 East 142, J. G. Ladd, but did not so word the contract, and held, where Wilkes v. one contracts as agent for another, and means not to be personally liable, the contract itself must shew the character in 6D. & E. 176. which he contracts, and that he does not intend to bind him- —Salk. 95.— self. Though the wages of a ship-master cease from the time of 6 Co. 18.capture, yet where one engages as a flag-captain to protect Ves. jr. the property, as neutral, at certain monthly wages, he must 631. be held entitled to his wages, as well after, as before the capture, having been employed in defending the property from condemnation, and until his return. This contract was plain 2 Bos. & P. and intelligible in itself, and hence no parol evidence could be 565. admitted to explain in what character Wm. Ladd meant to contract. Though it appeared in the contract, that J. G. Ladd owned the vessel, yet it did not appear in the contract, or in the signature of Wm. Ladd, he bound, or meant to bind J. G. Ladd, and the contract gave no action against him. Cro. Car. 335. v. South Par Vern. 127. § 15. Assumpsit to recover $421 79 for glass, the plts. 12 Mass. R. delivered to the defts. Held, where a parish appointed a com- 185, 190, mittee of three to build a meeting-house, a contract made by Kupper & al. one of the committee is not binding on the parish. He failed ish in Augusbefore the parish was called on, nor was the committee au- ta-See 2 thorized to buy on the credit of the parish. It seems to have 1 Vern. 210. been the opinion of the Chief Justice, who tried the cause, that -2 P. W. the parish, as it received and used the glass, would have been 266.-Ambl. liable, if no loss had intervened by the failure of the committee- Ch. R. 101man, who contracted and gave his note for it, in behalf of the 2 Br. P. C. committee, as he expressed it. One really an agent drew a 495, 498, as bill and fixed his own name only to it: held, personally liable, to a Principal Ch. 20, a. 20, s. 32. One signed pro W. G., J. S. C. See and Agent. Ch. 20, a. 20, 32. 770.-1 Br. 500.-Atbl. Emerson & vidence Hat Manufacturing Compa 16. Assumpsit on a note, also for goods sold and deliver- 12 Mass. R. ed, same goods the note was given for. Arnold Buffum was the 237, 245, agent of the company, and his sub-agent in Boston was Frink al. . the ProRoberts, who gave the note for the company. Held first, where one, as attorney, executes a sealed instrument, and his power is questioned, it cannot go to the jury, until his letter of attorney is produced to the court, who are to judge of its competency. 2. In all simple contracts made by agents or attornies, in which the authority may be proved by oral testimony, the fact of signing and the power to sign being both questions ny. Сн. 9. for the jury, the order in which proved is matter of indifferArt. 19. ence. 3. Though a general agent of a trading company, and one of it, may make notes to bind it, yet a sub-agent appointed by him cannot have such authority. 4. But he may buy on credit, if not prohibited, being appointed to buy stock and sell goods for the company, and bind the company. 5. The promissory note of such sub-agent, given on such purchase, not binding the company, will not extinguish the implied promise of the company raised by the law on the purchase. Roberts was admitted as a witness for the plts., though objected to; so was Hibbard, one of the company, not objected to. 12 Mass. R. 419, 425, Dow jr. v. Prescott. See Coburn 17. Assumpsit for money had and received; held, an attorney who has received monies due to his principal, with directions to pay it over, pursuant to an agreement with a third person, is liable to pay it to his principal at any time before he has paid it over to such third person. If A sign a note in B's name, as his attorney, and has no authority for the purpose, A is personally liable to him who accepts the note under such mistake or imposition. 3 Jolins. Cas. 70, Dusenbury v. Ellis. ART. 19. When the plt. must, may, or may not sue in auter v. Ansart, Ch. droit, or in his own right; various cases and principles con 9, a. 17. 5 Com. D. 868, Rush v. Rush. 4 T. R. 277, Kynaston. Salk. 207, v. Plume. sidered. § 1. It is often difficult to decide when the plt. must sue in auter droit, or in his own right. § 2. 1st. Where the plt. must sue as administrator or executor. As where a bail bond is assigned to an administrator, as administrator, he shall sue as administrator, and not in his own right; here the old bond, taken in trust for the intestate, is kept alive as the ground of action, and the only ground of action. § 3. The plt., as executor, declared on an account stated by himself and the deft.; this was deemed to remain a debt to the estate of the testator; and Buller J. stated the rule to be, that if the goods, the subject of the action, "never were in the actual possession of the executor," he must sue as executor, "and if the goods recovered would be assets" in his hands, he must sue as executor. § 4. Holt C. J. said, that if the goods of the testator be Jenkins & ux. taken and converted before they come to the hands of the executor, he must sue as executor, for they were never assets. If once assets, he is accountable for them, and then he must demand them as his own. 6 Mod. 92, 181. 4 T. R. 281. --Dougl. 4. So whenever he has been in actual possession, they become his &c., but the goods are not assets, for which the executor is absolutely accountable, till he has actual possession. |