If the agent exceed his authority, so that his principal is not

bound, he will himself be liable for the damage thus occasioned to

the other contracting party, althoug-h he may have been innocent

of any intention to defraud. (s)f

{q) 5 East, 148. See Cass v. Rudell, 2 Yern. 280. Kennedy v. Gouveia, 3 D. <fe

R. 503. Talbot v. Godbolt, Yelv. 137. Haines v. French, Alejm, 6. Clajliill v.

Fitzgerald, 1 Wils. 28, 68. Bacon v. Dubarrj^ 1 Ld. Raym. 246, 1 Sal. 70. Norton

V. Herron, Ry. & M. 229. Burrell v. Jones, 3 B. <fe A. 4Y. Iveson v. Conington, 1 B.

& C. IGO. Hall V. Ashhurst, 1 Cr. &, Mee. 714. Magee v. Atkinson, 2 Mee. & Welsh.

440, Whore it was held that a person who signed the contract in his own name is li-

able, though known to be a broker. Ace. Higgins v. Senior, 8 M. & W. 834.

(r) 2 B. <fe B. 452. Jones v. Downman, 4 Q. B. 235, n. Downman v. Williams, 7

Q.B. 103. See Hartop v. Juckes, 2 M. & S. 438. Hart v. White, Holt, 76. See

Evans v. Evans, 3 Ad. & El. 132.

(s) Polhill V. Walter, 3 B. <fe Ad. 114. See 1 Esp. Ill, per Ld. Kenyon. 3 T. R.

661, 3 P. Wms. 279, 1 Eq. Ab. 308, 2 Vern. 127.

* The student will find an elaborate review of the various classes of cases in which

an agent incurs a personal responsibilit}', while contracting for his principal, in

Roberts v. Button et al., 14 Verm. 195.

f The exemption of the principal from all responsibility, either in law or equity,

does not extend to the agent. Thus, although a state cannot be sued, it is different

with its officers or agents. Bank of the United States v. Osborn, 9 Wheat. 743 1

Bald. 217. Elliott v. Swartwout, 10 Peters, 137.

214 Mercantile pers02ts. '

Rights of third Parties against the Agent.

The question, -whether an agent is personally liable for money

paid to him for the use of his principal, under circumstances which

would entitle some person to recover it from. that principal, involves

much difiiculty. In the first place, it is clear that if the agent have,

without notice to act otherwise, paid over the money to his princi-

pal, he never can be called on to refund it. (t) But in Cox v,

.Prentice, {u) it was laid down by the Court, on the authority of

BuUer V. Harrison, that an agent who receives money for his

principal, is liable as a principal, so long as he stands in his original

situation, and until there has been a change in circumstances by

his having paid over the money to his principal, or done what is

equivalent to it. (y) In that case the defendant received a bar of

silver from his principal, and sold it to the plaintiff, at a price cal-

culated with reference to the number of ounces which, on assay,

It was thouoht to contain ; it turned out afterwards, that it con-

tained fewer ounces than had been supposed, and the plaintiff was

held entitled to recover the money overpaid from the defendant,

who had not yet handed it to his principal, although he had for-

warded an account to him, in which he was credited with the full

sum, but which was still unsettled. In Buller v. Harrison, the de

fendant was an insurance broker, and the money sought to be recov-

ered, was paid by the plaintiff, an underwriter, in discharge of a loss

which turned out to be foul. It will be observed, that in neither

of these cases could the principal himself, ever by possibility, hav6

claimed to retain the money for a single instant had it reached his

hands, the payment having been made by the plaintiff under pure

mistake of facts, and being void, ah initio, as soon as that mistake

was discovered, so that the agent would not have been estopped

from denying his principal's title to the money, any more than the

factor of J. S. of Jamaica, who has received money paid to him

under the supposition of his employer being J, S. of Trinidad,

would be estopped from retaining that money against his employer,