The plaintiff had a right to be satisfied that Holmes was duly authorized to receive the money, before he acted upon his demand, and a refusal, upon that specific ground, would have been justifiable. Solomons v. Dawes, 1 Esp., 83; Roe v. Davis, 7 East., 363. But he did not refuse upon that ground; he made no questions concerning the authority of Holmes, or the genuineness of the receipt. The call, by Holmes, with the bill receipted in his hand, was as much a personal call upon the plaintiff, as if it had been made by the treasurer, who signed the receipt.
The defendant company cannot be considered as having waived their right to be exempted from liability for the plaintiff’s loss, by their subsequent assessment and collection to cover it. The plaintiff was no party to that proceeding; he claimed that the company were liable to him for the loss, and whether or not they were liable might depend upon the uncertain result of a lawsuit. They might, very properly, have made the assessment and collection. If they were liable, they would then have funds to pay for the loss. If they were not liable, they would have a surplus, which they would, of course, be bound to appropriate, according to the legal rights of those interested therein.
Plaintiff nonsuit.