Powell v. Trustees

Spencer, Ch. J. delivered the opinion of the Court. On the argument of the cause, I confess the inclination of my mind Was strongly against the plaintiff’s right to recover ; but subsequent reflection and examination has led me to a different conclusion. I will state some adjudged cases, that bear strong analogy to the present, and then deduce some general rules from, them. In Ramsay v. Gardner, (11 Johns. Rep. 439.) the defendant, being in want of money, applied to the plaintiff to inform him how he should draw a sum of money from a relation in Scotland; it resulted in the defendant’s drawing a bill, which the plaintiff endorsed and negotiated; the bill was returned protested, and the plaintiff had to pay 20 per cent, damages. It was objected to the plaintiff’s recovery, that the plaintiff was not authorized to sell the bill, but that having done so, and become liable in damages, it was his own fault, and he ought to bear the loss. It was decided, that the plaintiff acted as the defendant’s agent in. the negotiation of the bill, without any expected benefit; that the • damages were paid by the plaintiff as agent; and judgment was given for the plaintiff. In Exall v. Patridge and others, (8 Term Rep. 308.) the plaintiff’s goods happened to be on premises chargeable with rent; they were dis-trained for rent in arrear, and the plaintiff was obliged to pay the rent to redeem them; it was held, that he might maintain an action for money paid to the use of the original lessees, who were bound by covenant to pay the rent. In Child v. Morley, (8 Term Rep. 610.) the plaintiff, a broker, contracted, by the authority Of the defendant, for the sale of .stock at a future day; the defendant refused to [288] make good the bargain by paying the difference, whereupon j.j,e pjainiífí* paid the difference, and brought bis action against his employer; it was decided, that the broker might recover in a special action on the case, but not on an impliecj promise, because he had paid the money voluntarily. In the case of D'Arcy v. Lyle, (5 Binney’s Rep. 441.) it was decided, that damages incurred by an agent, without his own fault, in the management of the principal’s affairs, or in consequence of such management, must be borne by the principal. The case was thus: The plaintiff went to Cape Francois, with a power of attorney to demand a debt from Suckley <§• Co. there. On the voyage, the power of attorney was lost. He stated this to S. $• Co. who consented to deliver up the goods of the defendant; but before the goods were delivered, they were attached by the creditors of S. Co. The plaintiff interposed a claim in behalf.of the defendant, and the goods were delivered to the plaintiff, by the decree of the chamber of justice. The plaintiff then sold the goods, and remitted the proceeds to the defendant. The plaintiff was, afterwards, compelled, in an arbitrary manner, and by duress, to let judgment go against him, at the suit of the attaching creditors, upon false allegations, and was compelled to pay them their claim. It was held, that the plaintiff might recover of the defendant, his principal, the amount thus paid, not exceeding the value of the defendant’s goods. Ch. J. Tilghman expressed his approbation of the law, as laid down by Heineccius, b. 13. p. 269, 270. (a) and 2 Ersk. Inst. 534. that damages incurred by an agent-, or in the course of the principal’s affairs,, or in consequence of such management, were to be borne by the principal. It was admitted, that where an agent, on a journey, on business of his principal, was robbed of his own money, the principal would not be answerable, because carrying his own money was not necessarily connected with the business of his principal. So, if he received a wound, the principal is not bound to pay the expense of the cure, for it was the personal risk of the agent. The distinction [289] appears to be, between those cases which arise naturally out of the agency, and such as are casual, or oblique, not proceeding directly from the execution of the mandate. Upon this principle stands the doctrine of contribution towards a general average ; where the owner of a vessel cuts away a mast, to avoid impending ruin, there the owners of goods are personally liable for the amount of contribution, on the ground that the act wa? done, by the general agent, for the safety of the property. In Stocking v. Sage and others, (1 Day’s Conn. Rep. 522.) Ch. J. Swift laid down these principles, to which the other Judges agreed: “ that where an agent, acting faithfully, without fault, in the proper service of the principal, is subjected to expense, he ought to be reimbursed. If sued on a contract made in the course of his agency, pursuant to his authority, though the suit be without cause, and he eventually succeeds, the law implies that the principal will indemnify him, and refund the expense ; for this he can maintain an action of indebitatus assumpsitand the proof of these facts will be sufficient to warrant the jury to find the promise.’’ These principles are precisely applicable to this case : the plaintiffs were sued for an act done by them as the agents and trustees of the corporation, in the course of their agency, and pursuant to authority. They acted faithfully and without fault, and are entitled to recover, for every thing reasonably and necessarily disbursed in and about their defence, and which could not be included in the taxation of costs, in the judgment recovered against Gardner. Judgment for the plaintiffs. Footnotes [(a)] Heinec. Op. tom. 1. Elem. Jur. Nat. et Gent. lib. 1. c. 13. s. 349. Et vide, Poth. Trait. du Contrat de Mandat, ch. 3. s. 1. art. 1. s. 2. s. 3. n. 68—78. Domat, B. 1. tit. 15. s. 2. § 6. Dig. lib. 17. tit. 2. 1. 26. tit 11.1. 52. 61.