
    George Fisher, Respondent, v. Allen C. Meeker, Appellant.
    Third Department,
    March. 13, 1907.
    Principal and agent—-when overpayment to principal not recoverable from agent.
    An agent acting within the scope of his authority cannot he held liable by persons other than his principal for moneys properly received by him in the name and’ in the business of the principal.
    Thus, where' the plaintiff purchased goods of the defendant as agent to whom lie paid the purchase price without any express promise by the agent to pay the sum to the principal, and thereafter on demand by the principal again paid a portion of the purchase money, he cannot ■ recover the overpayment from the agent. This, because payment to an agent who has authority- to collect is payment to the principal and an absolute discharge of the debt, and it is of no consequence to the debtor that the agent fails to account to the principal.
    Chester, J., dissented.
    Appeal' by the defendant, Allen 0. Meeker, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 2d day of May, 1906, upon an order: of said County Court entered on the 2d day of May, 1906, affirming a judgment of the Justice’s Court of the town of Waddington in favor of the plaintiff, and also from the said order upon which the judgment appealed from was entered.
    
      Frederic J. Merriman, for the appellant.
    
      Edward P. Martin, for the respondent.
   Sewell, J.:

The plaintiff purchased a cultivator of the defendant, who was selling carriages and farm implements for one Horton. The price of the cultivator was thirty dollars, of which ten dollars was paid at the time of purchase. The plaintiff claims that he subsequently paid the balance to the defendant and then said to him: “ Have come to pay balance on cultivator; ” that he gave him twenty dollars and told him to apply same on balance for cultivator bought of Horton, and that Meeker said he was going to the office and would give him credit on his books.

Sometime thereafter Horton notified the plaintiff that a balance of twenty dollars was due, and threatened to commence a proceeding to collect the same, whereupon plaintiff paid Horton the amount claimed and brought this action against the defendant to recover the twenty dollars paid to him.

As to the- relations existing between the defendant and Horton there can be no doubt. It is undisputed that he was doing business for Horton and in his name. The plaintiff testified that he understood that Horton owned the goods in the store and that the defendant was working for him, and “ I understood the same when I paid him the ten dollars and the same when I paid him the twenty dollars.”

There is no evidence in the case tending to establish the fact of agency for the plaintiff in this particular transaction. Ho evidence was offered showing or tending to show that the defendant bound himself by an express promise to the plaintiff to pay the money to Horton, or that he assumed any duty in his individual character or which did not. devolve upon him purely from his employment by Horton. Hence, the question is presented whether an agent, acting within the scope of his authority, can be held liable by any other jierson than his principal for money properly received by him in the name and business of the principal.

The case of Smith v. President, &c., of Essex County Bank (22 Barb. 627) is a direct authority against the right to sustain such an action. It was there held that a payment to an agent who has authority to collect is a payment to tlie principal and an absolute discharge óf the debt, and that it is a matter' of no sort of consequence, só far as' the debtor is concerned, whether the agent accounts for it or misapplies iti

In the case of Hall v. Lauderdale (46 N. Y.70) it was held that an action cannot be maintained against an agent, although, having money of his principal in. his hands, applicable to the payment of the debt of his principal, he refuses to pay it. The court, through Judge Andrews, said: “The defendant was responsible to-tlie principal, and to the principal alone, for any omission or neglect of duty in the matter of his agency.”

The case of Colvin v. Holbrook (2 N. Y. 126) recognizes this ' same principle. Tlie court there said : “ The rule, it is believed, is universal, that a known agent is not responsible to third persons for acts done by him in pursuance of an authority rightfully conferred upon him. The very notion of an agency proceeds upon the supposition that what a man may lawfully -do by a substitute, when performed, is done by himself, and the individuality of the agent so far is merged in tliat of the .principal. It is also settled, if anything can be established by authority, that an agent is not liable to third persons for an omission or neglect of duty in the matter of his- agency, but that the principal is alone responsible.” * (Cooper v. Tim, 16 Misc. Rep. 372.)

There is a class of cases to which the respondent refers in which the-responsibility of agents and servants'has been upheld. They are cases where the principal had no right to receive the money, and, of course, could confer none upon the agent, or where it was paid by mistake, or where the agent exceeded his authority, or was guilty of misfeasance, not as an agent or servant but as a wrongdoer, or where payment was induced by a wrongful act of the agent, or there was an explicit agreement to return it.

These cases differ from a case like this, where the agent had.a right to receive the money for his principal and receives it, not in his individual capacity, but as the agent of the creditor and for his use.

Ho case has been cited, and I think none can' be found, where an agent or servant has been held under such circumstances.

The County Court was, therefore, wrong in affirming the judgment of the justice. It should be reversed, as well as the judgment in Justice’s Court, with costs in this court and in the County Court.

All concurred, except Chestee, J., dissenting.

Judgment of the County Court and Justice’s Court reversed, with costs in this court and in the County Court.  