V. Ford. 64 u. S. (23 How.) 49.

В§ 205. Presumption that principal was to be bound.

— Where dealings are had with the agent of a known

principal," the presumption will be that credit was given

to the principal, and that the principal, rather than the

agent, was to be bound; but this presumption may be

rebutted by evidence of an intention to bind the agent

personally.

See Moline Malleable Iron Co. v. York Iron Co., 27 C. C. A. 442,

53 U. S. App. 580, 83 Fed. Rep. 66.

В§206. Presumption stronger in case of public

agent. — In the case of a public agent, the presumption

that the agent was not to be personally bound is

stronger than in the case of a private agent ; and a

known public agent will only be held personally bound

where the evidence is very clear of an intention so to

bind him ; and a public agent who discloses the source

of his authority, and is guilty of no fraud or misrepre-

sentation, is not liable upon an implied warranty of

authority; because his authority is a matter of public

law or record, which the other party must examine for

himself.

See McCurdy v. Rogers, 21 Wis. 197, 91 Am. Dec. 468; Knight v.

Clark, 48 N. J. L. 22, 57 Am. Rep. 534, Cas. Ag. 434.

85 207-209.] DUTIES OF AGENT TO THIRD PERSONS. 109

4. Where Agent has obtained Money from third

Person.

В§ 207. When money voluntarily paid by mistake

may be recovered. — Where money has, by mistake, been

voluntarily paid to an agent for the use of his prin-

cipal, the agent will not be liable to the person paying

it, if, before notice of the mistake, he has paid it over

to his principal, but he will be liable if he pays it over

after notice.

So an agent who receives money by mistake on ac-

count of his principal, will not be liable where, before

notice of the mistake, his situation has so changed that

he will be prejudiced if the payment is held invalid.

See Herrick v. Gallagher, 60 Barb. 566, Cas. on Ag. 512; Smith

v. Binder, 75 111. 492.

If, however, the agency were not known, the agent

will be liable even though he has paid the money to his

principal.

See Smith v. Kelly, 43 Mich. 390.

§ 208. Money obtained illegally.— An agent who has

obtained money from third persons illegally, as by com-

pulsion or extortion, will be liable to the person paying

it, although he has paid it over to his principal.

See Ripley v. Gelston, 9 Johns. (N. Y.) 201. 6 Am. Dec. 2T1;

Grover v. Morris, 73 N. Y. 473.

5. Where Agent has rewired Money for third Person.

В§ 209. Money delivered to agent by principal for

third person. — Where money has been delivered to an

agent by the principal to be paid to a third person, the

principal may countermand the order to pay, and re-

cover the money from the agent, at any time before the

110 DUTIES OF AGENT TO THIRD PERSONS. [§§209-211.

agent has either paid it over to the third person, or

assumed an obligation to such third person to pay it.

See Williams t. Everett, 14 East 582.

Whether the third person may sue for and recover it

from the agent is not certain. It is held in many cases

that a person for whose benefit a contract was made

but who was not a party to it, cannot maintain an

action at law upon it. Other cases recognize the right

of the beneficiary under a contract, though not a

party to it, to sue upon and enforce it.

See the exhaustive note upon thiB subject in 71 Am. St. Rep.

176. Also 25 L. R. A. 257; 39 Am. St. Rep. 531; 9 Am. Dec. 155;

3 Am. Dec. 305.

II. IN TORT.

5 210. Agent not liable in tort for breach of

duty owing to principal alone. — An agent is not lia-

ble in tort to third persons who have received injury

because of the agent's failure to perform some duty

which he owed to his principal alone. Thus, one who

purchases real estate in reliance upon an opinion as to

its title given to the vendor by the latter's attorney, or

who purchases a mortgage upon the strength of a

search made by the attorney of the original mortgagee,

cannot recover of the attorney if the title proves de-

fective or the search incomplete.

See Savings Bank v. 'Ward, 100 U. S. 195; Dundee Mortg. Co. v.

Hughes, 20 Fed. Rep. 39; Houseman v. Girard Ass'n, 81 Penn. St.

256; Fish t. Kelly, 17 Com. B. (N. S.) 194.

§ 211. Non-feasance — Mis-feasance. — While it is

thus true that the agent is not liable to third persons for

the breach of a duty owing solely to his principal, there

are many cases wherein he will at the same time incur

a liability to third persons. Thus an agent charged

В§211.] DUTIES OF AGENT TO THIRD PERSONS. 11]

with the custody and control of property, while he may

owe duties respecting it to his principal, is at the same

time under an obligation not to permit the property so

controlled by him to cause injury to third persons. An

agent given possession and control of a horse may be

under a duty to his principal not to injure the horse by

overdriving, but he is also under a duty to third per-

sons not to injure them while overdriving the horse.

So an agent given the charge and control of real estate

and charged with the duty of keeping it in repair, owes

a duty to his principal that the latter shall not suffer

from his neglect in making repairs, but he may also owe

a duty to third persons to see that they do not suffer

loss by reason of his failure to keep the property in

suitable repair. Where the agent thus owes a duty

to third persons, he will be liable to them for injuries

caused by his failure to perform the duty owing to

them, even though he may also be liable to his principal

for the neglect of the duty which he owed to him. The

breach of the duty owing to the principal, where it con-

sists in not doing something which he ought to do, is

often termed non-feasance; the breach of the duty ow-