As to third parties, generally, when a per son having full authority is known to act merely for another, his acts and contracts will be deemed those of the principal only, and the agent will incur no personal respon sibility. 2 Livermore, Ag. 245 ; Story, Ag. 261 ; Paley, Ag. 368, 369 ; 2 Kent, Comm, 629, 630 ; 15 East, 62 ; 3 P. Will. 277 ; 6 Binn. Penn. 324 : 13 Johns. N.Y. 58, 77 ; 15 id. 1. But when an agent does an act with out authority, or exceeds his authority, and the want of authority is unknown to the other the agent will be personally re sponsible to the person with whom he deals. Story, Ag. 264 ; 2 Livermore, Ag. 255, 256 ; 2 Taunt. 385 ; 7 Wend. N. Y. 315 ; 8 Mass. 178. If the agent having original au thority contract in the name of his principal, and it happen that at the time of the con tract, unknown to both parties, his authority was revoked by the death of the principal, the agent will not be personally responsible. Story, Ag. 265 a; 10 Mees. & W. Exch. 1.
An agent will be liable on a contract made with him when he expressly, or by implica tion, incurs a personal responsibility, Story, Ag. 156-159, 269 ; as, if he make an ex press warranty of title, and the like ; or if, though known to act as agent, he give or ac cept a draft in his own name, 5 Taunt. 74; 1 Mass. 27, 54 ; 2 Du. N. Y. 260 ; 2 Conn. 453; 5 Whart. Penn. 288; and public as well as private agents may, by a personal engage ment, render themselves personally liable, Paley, Ag. 381. In general, although a per son contract as agent, yet if there be no other responsible principal to whom resort can be bad, he will be personally liable: as, if a man sign a note as "guardian of A.B.," an infant, in that case neither the infant nor his property will be liable, and the agent alone will be responsible. Paley, Ag. 374; Story, Ag. 280 ; 2 Brod. & B. 460; 5 Mass. 299; 6 id. 58 ; 8 Cow. N. Y. 31. The case of an agent of government, acting in that ca pacity for the public, is an exception to this rule, even though the terms of the contract be such as might, in a case of a private na ture, involve him in a personal obligation; it not being presumed that a public agent meant to bind himself individually. Paley, Ag. 376, 377 ; and see 5 Barnew. & Ald. 34; 1 Brown, Ch. 101; 6 Dowl. & R.122; 7 Bingh. 110. Masters of ships, though known to contract for the owners of the ships and net for them selves, are liable for the contracts they make for repairs, unless they negative their respon sibility by the express terms of the contract.
Paley, Ag. 388 ; 15 Johns, N. Y. 298 ; 16 id. 89 ; .11 Mass. 34. As a general rule, the agent of a person resident in a foreign coma , try is personally liable upon all contracts made by him for his employer, whether he describe nimself in the contract as agent or not, this being the usage of trade, and it being presumed that the credit was given to him and not to his principal, 2 Livermore, Ag. 249 ; Story, Ag. / 268; Paley, Ag. 248, 373, 382; 15 East, 68 ; 9 Barnew. & C. 78 ; 3 Hill, N. Y. 72 ; but this presumption may be rebutted by proof of a contrary agreement. 11 Ad. & E. 589, 594, 595.
An agent is personally responsible where money has been paid to him for the use of his principal under such circumstances that the party paying it becomes entitled to recall it. In such cases, as long as the money has not been paid over by the agent, nor his situ at m altered, as by giving his principal fresh credit upon the faith of it, it may be recovered from the agent, Paley, Ag. 388, 389 ; 2 Liver more, Ag. 260, 261 ; Story, Ag. / 300 ; 3 Maule & S. 344; 7 Johns. N. Y. 179 ; 1 Wend. N. Y. 173; and if, in receiving the money, the agent was a wrong-doer, he will not be exempted from liability by payment to his principal. Paley, Ag. 393, 394; 1 Campb. 396.
With regard to the liability of agents to third persons for torts, there is a distinc tion between acts of misfeasance or positive wrongs, and non-feasances or mere omissions of duty. In the former case, the agent is personally liable to third persons, although authorized by his principal, Story, Ag. / 311 ; Paley, Ag. 396; 1 Wils. 328; 1 Bos. & P. 410 ; 28 Me. 464; while in the latter he is, in gene ral, solely liable to his principal. Story, Ag. / 308 ; Paley, Ag. 396, 397, 398 ; Story, Bailm. // 400, 404, 507.
Where sub-agents are appointed, if the agent has either express or implied author ity to appoint a sub-agent, he will not ordi narily be responsible for the acts or omissions of the substitute, 2 Boo. & P. 438 ; 2 Maule & S. 301 ; 1 Wash. C. C. 479 ; 8 Cow. N. Y. 198; and this is especially true of public offi cers, 1 Ld. Raym. 646 ; Cowp. 754; 15 East, 384; 7 Cranch, 242 ; 9 Wheat. 720 ; 8 Wend. N. Y. 403 ; 3 Hill, N. Y. 531 ; 22 N. H. 252 ; 13 Ohio, 523 ; 1 Pick. Mass. 418 ; 4 Mass. 378 ; 8 Watts, Penn. 455 ; but the sub-agent will himself be directly responsible to the prin cipal for his own negligence or misconduct. Story, Ag. / 201, 217 a; 2 Gall. C. C. 565 ; 8 Cow. N. Y. 198.