"A distinction was taken on the argument in the present case, by the defendant's counsel, between an executed and an executory contract; and it was said, that whatever might be the rule in the former class of cases, where the defendant has received the benefit of the contract, and it is probably immaterial to him whom he pays, yet that in the latter class the defendant cannot be properly held answerable to B., having expressly contracted with A.; and a passage in the judgment of the court in the case of Rayner v. Grote was much relied on, which is this: 'If, indeed, the contract had been wholly unperformed, and one which the plaintiff, by merely proving himself to be the real principal, was seeking to enforce, the question might admit of some doubt. In many cases, such as, for instance, the case of contracts, in which the skill or solvency of the person who is named as the principal may reasonably be considered as a material ingredient in the contract, it is clear that the agent cannot then show himself to be the real principal, and sue in his own name; and it may be fairly urged that this, in all executory contracts, if wholly unperformed, or if partly performed without the knowledge of who is the real principal, may be the general rule.' With this passage we entirely agree; but it is plain that it is applicable only to cases where the supposed principal is named in the contract; if he be not named, it is impossible that the other party can have been in any way induced to enter into the contract by any of the reasons suggested.
" In the present case, the names of the supposed freighters not being inserted, no inducement to enter into the contract, from the supposed solvency of the freighters, can be surmised. Any one who could prove himself to have been the real freighter and principal, whether solvent or not, might most unquestionably have sued on this charter-party. The defendant cannot have been in any way prejudiced in respect to any supposed reliance on the solvency of the freighter, since the freighter is admitted to have been unknown to him, and he did not think it necessary to inquire who he was. It is, indeed, possible that he may have been contented to take any freighter and principal, provided it was not the present plaintiff, and he may have relied on the terms of the charter-party, indicating that the plaintiff was an agent only, being willing to accept of any one else, be he who he might, as, principal.
"After all, therefore, the question is reduced to this, whether we are to assume that the defendant did so rely on the character of the plaintiff as agent only, and would not have contracted with him as principal if he had known him so to be; and are to lay it down as. a broad rule, that a person sue third persons, whenever they are at all responsible upon their contracts, made in the course of the agency;1 unless the instrument be under seal, and be exclusively made with the agent, as a charter-party or bottomry bond;2 or unless exclusive credit be given to and by the agent, as in the case of a foreign factor;3 or unless the agent have a lien or claim upon the property bought or sold, or upon its proceeds, exceeding the value thereof, - in which case the rights of the agent are paramount to those of the principal; 4 or unless payment and satisfaction have been already made to the agent, in which case he alone is responsible;5 or unless the agent have reprecontracting as agent for an unknown and unnamed principal is precluded from saying, ' I am myself that principal.' Doubtless his saying so does in some measure contradict the written contract, especially the concluding clause, which says, ' This charter-party being concluded on behalf of another party,1 etc, for there was no such other party. It may be that the plaintiff entered into the charter-party for some other party who had not absolutely authorized him to do so, and afterwards declined taking it; or it may be that he intended originally to be the principal. In either case the charter-party would be, strictly speaking, contradicted; yet the defendant does not appear to be prejudiced, for as he was regardless who the real freighter was, it should seem that he trusted for his freight to his lien on the cargo. But there is no contradiction of a charter-party, if the plaintiff can be considered as filling two characters, namely, those of agent and principal. A man cannot, in strict propriety of speech, be said to be agent to himself; yet in a contract of this description, we see no absurdity in saying that he might fill both characters, - that he might contract as agent for the freighter, whoever that freighter might turn out to be, and might still adopt that character of freighter himself if he chose. There is nothing in the argument that the plaintiff's responsibility is expressly made to cease ' as soon as the cargo is shipped,' for that limitation plainly applies only to his character as agent, and, being real principal, his responsibility would unquestionably continue after the cargo was shipped."
1 Estate of Merrick, 2 Ashm. 485; Hubbert v. Borden, 6 Whart. 79.
1 Taintor v. Prendergast, 3 Hill, 72; Rutland & Burlington R. R. v. Cole, 24 Vt. 33; Roome v. Nicholson, 8 Abb. Pr. (n. s.) 343 (1869).
2 Schack v. Anthony, 1 M. & S. 573; Abbott on Shipping, pt. 3, ch. 1, § 2, p. 163, 164 (1829); Tilson v. Warwick Gas Co., 4 B. & C. 962; Fletcher v. Gillespie, 3 Bing. 635.
3 Thomson v. Davenport, 9 B. & C. 87; Paterson v. Gandasequi, 15 East, 62; Addison v. Gandassequi, 4 Taunt. 574; Hyde v. Paige, 9 Barb. 150.
4 Story on Agency, § 160, 407, 408, 422, 423, 424.
5 Estate of Merrick, 2 Ashm. 485; Hubbert v. Borden, 6 Whart. 79.
§ 270. Where the agent has either express or implied authority to receive or make payment, payments made to or by him are obligatory on the principal. But if the principal give notice to the payer not to pay his agent, and the payer actually pay, in violation of such notice, the principal may, nevertheless, recover the sum from such payer.3 Where, therefore, an agent, to get a note discounted, indorsed it and presented it for discount, as his own, and the bank discounted and passed the proceeds to his credit; it was held, that the bank was responsible to the principal therefor, after notice not to pay them to the agent.4 And an agent, whether acting on a del credere commission or not, is only authorized to receive cash in payment for goods, in the absence of any practice or custom to the contrary; and if he do receive any thing else, the payer will not be discharged as to the principal.5 So, also, the principal is discharged from a debt to a third person, if it be paid by the agent; or if the third person accept a particular mode of payment, his only claim is against the agent.6 So, where payments have been made by the agent to the injury of the principal, the principal may recover the money so paid, when the whole consideration fails; or when it has been paid through mistake; or been illegally extorted; or where fraud and imposition have been practised;7 or where the person to whom payment is made knows that the agent had no authority to pay it.1
1 Humble v. Hunter, 12 Q. B. 310. See ante, § 267.
2 Story on Agency, ch. 16, per tot. See ante, § 263-269.
3 Favenc v. Bennett, 11 East, 38; Coates v. Lewes, 1 Camp. 444; Blackburn v. Scholes, 2 Camp. 341, 343; Morris v. Cleasby, 1 M. & S. 576; Pitts v. Mower, 18 Me. 361.
4 Merrill v. Bank of Norfolk, 19 Pick. 32.
5 Catterall v. Hindle, Law R. 1 C. P. 186 (1866).
6 Seymour v. Pychlau, 1 B. & Al. 14; Strong v. Hart, 6 B. & C. 160; Smith v. Ferrand, 7 B. & C. 19; Porter v. Talcott, 1 Cow. 359; Story on Agency, § 431, and cases cited; Anderson v. Hillies, 12 C. B. 499; 10 Eng. Law & Eq. 495.
7 Duke of Norfolk v. Worthy, 1 Camp. 337, 389; Dalzell v. Mair, 1 Camp. 532; Ancher v. Bank of Eng., 2 Doug. 637; Treuttel v. Barandon, 8 Taunt. 100; Story on Agency, § 435.
§ 271. In cases of tort, if both the agent and third person be parties, the principal may have his remedy jointly and severally, against both. If the agent only be guilty, he only is responsible. If, however, the third person alone be guilty, he will be responsible to both principal and agent.2