The opinion of the Court was delivered, March 27th 1868, by
Agnew, J.The testimony of the school directors, offered to prove an express contract on part of the defendant to pay back the $200 advanced for him, was properly rejected. The payment of the money being unauthorized, they were liable to the district, and had a direct interest in the recovery in this action, in order to exempt themselves" from the effect of their mispayment.
But we think the learned judge erred in instructing the jury that there was no evidence for their consideration in support of the plaintiff’s claim. The party here is the school district, not the individual directors, and its money was paid for the benefit of the defendant at his request — indeed at his earnest solicitation, The payment was unauthorized, and this the defendant was as much bound to know as the directors who paid the money for his use. He was not merely quiescent, and the payment simply voluntary on part of the directors. Having .induced the directors, and joined with them in causing the money to be paid for his own special benefit, he cannot now set up their want of authority against the school district as a defence. The district cannot be prejudiced by the unauthorized act of its officers', and may look to him as well as to them. Its money unquestionably went' to his his use, and that use- was dictated by his own desire and request. The law out of these elements will raise a promise to refund. As to the $300 paid we express no opinion, the suit being brought only for the $200, the excess over'the maximum sum allowed to be paid under the general bounty laws. The court ought to have left the case to the jury on the evidence.
Judgment reversed, and a venire de novo awarded.