Kent v. Bornstein , 94 Mass. 342 ( 1866 )

Bigelow, C. J.

The facts of this case do not bring it within the familiar principle relied on by the defendant, that a mere agent or servant, with whom a contract, either express or im plied, is entered into in behalf of another, and who has no beneficial interest in the transaction, cannot support an action thereon. The plaintiff had possession of money belonging to another, for a special purpose only. His authority was strictly limited. It was confined to the making of sales of goods in the store and the payment of the money received therefor to a third person. He had no authority to deal with the money as his own, or to appropriate it for any purpose whatever. His duty was merely to receive it for goods which he might sell in the course of the day, and to hold it in his possession till the hour for the daily payment of it over to the sheriff’s keeper arrived, when he was bound to pay it over to him. Any act or dealing with the money beyond this was outside of the scope of his employment. He had no authority to enter into any con tract concerning the money in his hands, or to exchange it for other money with third persons. An authority to receive the proceeds of sales in a shop did not empower the plaintiff to exchange the money received in- small sums for bills of larger denominations with persons who made no purchases of goods No evidence was offered to show any usage of business, either general or special, which would authorize the inference that the plaintiff’s authority was extended beyond the precise terms of his employment, so as to embrace a transaction similar to that which he entered into with the defendant’s agent.

In this state of the evidence, it is clear that the plaintiff exceeded his authority in exchanging the smaller bills in his possession for one of the denomination of fifty dollars, and he is liable to his employer for the loss occasioned by his unauthorized act. It does not appear that the transaction has been ratified by the principal. For aught that we can know, the plaintiff is still liable for the amount of the genuine bills which he exchanged for the counterfeit one. It cannot therefore be said that the plaintiff has no beneficial interest in the cause of action on which this suit is brought. On the contrary, it plainly appears that his right to recover in this action is the only mode in which he can indemnify himself against the rightful claim of his employer for the loss caused by his abuse of the authority intrusted to him.

The return of the counterfeit note to the defendant is not essential to the maintenance of this action. It is entirely worthless, and an offer to return it would be an idle ceremony, which the law never requires. Perley v. Balch, 23 Pick. 283.

Exceptions overruled.