President of Appleton Bank v. McGilvray , 70 Mass. 518 ( 1855 )

Bigelow, J.

The objection that this action cannot be maintained, for want of privity between the parties to the suit, is not sustained by the proof. The rule of law is well settled, that, in the absence of any authority, either express or implied, to employ a sub-agent, the trust committed to an agent is exclusively personal, and cannot be delegated by him to another, so as to affect the rights of the principal. In such case, if the agent employs a substitute, he does it at his own risk, and upon his own responsibility. The agent only is liable to the principal, and the sub-agent is responsible solely to his immediate em-pi oyer; nor can the principal be liable for the acts of the sub-agent. There is no privity between them, upon which any mutual rights and remedies can be based.

But this general rule is always subject to be modified by the peculiar circumstances of each particular case, from which, or from the usage of trade, a power to delegate an authority can be inferred. Story on Agency, §§ 14, 388.

In the case at bar, it appears that the defendants delivered the note for collection to the carrier with directions “ to collect it in the ordinary way,” and that it was his custom to collect notes by depositing them in a bank, as well as by calling on the parties personally. The directions given by the" defendants were equivalent to an authority to adopt either of the modes of collecting the note, which the carrier was in the habit of using, and well warranted the jury in finding that the plaintiffs were duly employed as the agents of the defendants in this particular transaction. We cannot doubt that if the carrier had died or become insolvent before payment to him of the amount collected by the plaintiffs, the defendants, upon disclosure of the agency, would have had a good claim therefor against the plaintiffs. The privity necessary to make the parties liable to each other is created by the authority to employ a sub-agent, which is fairly to be inferred from the evidence.

This view of the legal relation of the parties is decisive of the remaining objection to the plaintiffs’ right of recovery in this action. The money was clearly paid over to the defendants under a mistake of fact, and, upon familiar principles, an action can be maintained to recover it back. It is no answer to the plaintiffs’ claim, that the mistake arose from the negligence of the plaintiffs. The ground on which the rule rests is, that money, paid through misapprehension of facts, in equity and good conscience belongs to the party who paid it; and cannot be justly retained by the party receiving it, consistently with a true application of the real facts to the legal rights of the parties. 2 Saund. Pl. & Ev. (2d ed.) 394. The cause of the mistake theiefore is wholly immaterial. The money is none the less due to the plaintiffs, because their negligence caused the mistake under which the payment was made. The case would have been dif ferent, if it had appeared that the defendants had suffered any damage, or changed their situation as respects their debtor, by reason of the loches of the plaintiffs. But the facts show that their rights were wholly unaffected by the mistake under which the payment was made. Nothing occurred subsequently to the payment, which renders it unconscientious to recover the money back. It is therefore clear that the defendants have money belonging to the plaintiffs in their hands, to which they show no legal or equitable title. Kelly v. Solari, 9 M. & W. 54. Bell v. Gardiner, 4 Man. & Gr. 11. 2 Smith’s Lead. Cas. 243, 244.

Judgment on the verdict.