The defendant, supposing himself to be authorized as the agent of School District No. 2, in St. Johnsbury, retained the plaintiff to defend a suit brought by Fairbanks & Co„ against *382the defendant and one Starks. The plaintiff also supposed that the defendant was authorized to employ him on behalf of the district, and accordingly charged his services in the suit directly to the district and not to the defendant. In fact the defendant was not so authorized; the vote • of the district extending his authority only to suits brought against'the district, whilst this suit was brought against the defendant and another as listers. For some time before the suit was brought, it was supposed that it would be brought against the school district, and upon that expectation the district passed the vote. When commenced against the listers, it was supposed to involve the same cause of action against which the district had voted to defend, and to be within the terms of the vote, and hence arose the mistake by which it was defended by the defendant and the plaintiff, as they supposed on behalf of the district. The defence was successful — the defendants obtaining a judgment for their costs.
The case is reported in 24 Vt. p. 9, and is referred to as a part of the case. Both the plaintiff and defendant appear to have been under a mutual mistake as to the defendant’s authority. Both, as the case finds, were at the meeting when the vote passed, and had equal means of knowing the extent of the defendant’s authority.
The suit being ended the plaintiff presented his account to the district for payment. They refused to pay it. He sued them and was defeated, upon the ground the defendant had no authority by the vote to retain him.
The first controverted item of the account is for the plaintiff’s services in the suit Fairbanks & Co. v, the defendant and Starks, The plaintiff claims this upon the ground that the services charged were rendered upon the request of the defendant in a suit against him, and were beneficial to him, and were charged to the district upon a mutual mistake of both parties.
From the report, and the case referred to in the report, it appears that Kittredge and another were the real defendants in the suit, and that if a judgment had been rendered against them they would have had no right of recovery over against either the town or the district. The judgment in their favor protected them from liability and entitled them to their costs. But both the plaintiff *383and defendant supposed the district the real defendant. In all this both were mistaken.
It appears also that the services of the plaintiff were valuable, “he bestowing great care and labor upon it, and being the sole counsellor in it.” These services were clearly beneficial to the defendant. They served to shield him from a liability through which he might have been subjected to great loss and expense, without remedy. They entitled him to a bill of costs which in the absence of proof to the contrary, it is to be presumed he has collected. He enjoys the immunity through, and claims the benefit of the plaintiff’s labors.
It seems to us that these circumstances clearly raise an equity on behalf of the plaintiff to recover of the defendant for the services rendered, being rendered at the defendant’s request. The mistake being mutual, it would not be just to say that the defendant should gain this benefit from the mistake, that he should have the services of the plaintiff for nothing, while those services were highly beneficial to him. On the contrary, equity requires that neither shall gain or lose by this mutual error, but that both shall stand precisely as if all the facts, which led to the mistake, and the mistaken supposition itself, had not existed; as if it was the ordinary case of beneficial services rendered by one in the business of another for which the law implies a promise to pay. In such case neither party gains or loses by the error. If the plaintiff had paid the defendant money, instead of rendering service to him, upon precisely the facts which exist in, this case, there could be no doubt that he could recover it back. It would be the common case of recovering for money paid by mistake. White v. Miller, 22 Vt. 380; Hadlock v. Williams, 10 Vt. 570.
Can a just distinction be drawn between money received and other property or beneficial service (money’s worth) received ? In each case the common ground of equity is, that the defendant upon his own request has ,'received a beneficial value without consideration and by mistake, and which it would be inequitable for him to retain. The injustice of making the plaintiff lose, and the defendant gain by this mistake, is more palpable when we consider that the defendant was the party of record and knew that the benefit of the defence enured to him, and that if the dis*384trict was.not liable by their vote, the plaintiff, in case of a mistake on that point, could not look to any body else than him for compensation, and would naturally look to him. The defendant could not suppose that the plaintiff’s services were gratuitous. The plaintiff had no such intent, nor could others have such expectation.
It is urged that as the plaintiff did not perform his labor upon the credit of the defendant, and as the defendant made no express promise, the law can not hold the defendant liable without making a contract for the parties, when they never intended a contract as between themselves. This position is by no means tenable. There are numerous cases where from the circumstances the law implies a legal obligation and a promise, though there was no express promise and no intent between the parties to enter into a contract. Ives v. Hulet, 12 Vt. 327; Sumner v. Williams, 8 Mass. 161.
It is also said that when the party dealing with the agent has the same means of knowledge that the agent has as to the extent of his authority, the agent will not be personally liable. Cases of this kind may be found, but we are inclined to think they are cases where the agent himself derived no benefit from the act of the other party.
For this item, therefore, we think the plaintiff entitled to recover.
The second item in dispute is, for the counsel fees, services, expenses and costs of the plaintiff’s suit against the district. This was a suit instituted by the plaintiff for his own benefit and without consultation with the defendant. The plaintiff had all the means of knowing, and knew as well as the defendant, what was the extent of the defendant’s authority. He took upon himself the risk and responsibility of that suit. There are no circumstances connected with it that raise any equity against or implied obligation upon the defendant to refund its costs and expenses to the plaintiff. The suit was not for the defendant’s benefit, nor was the plaintiff obliged to bring it before he could sue this defendant. If the defendant had told the plaintiff that he had authority to employ him without communicating to him the vote upon which his authority was based, and the plaintiff without any knowledge of the extent of the authority, but rely*385ing on the defendant’s assurances in that respect, had rendered the services and sued the district and incured these costs, then there might, perhaps we may say, there would have been, a just claim on his part to recover for expenses which he had incurred in good faith and by the defendant’s misleading him. But as he had the same knowledge of the defendant’s authority that the defendant had, be can not say he was misled by him and induced to bring a suit which he had no means of knowing he could not maintain.
This item was properly disallowed. As the county court found a balance due the defendant of twenty-one dollars and forty-six cents, that sum should be deducted from the item of eighty-one dollars and sixty-five cents, which we allow, and interest cast on the balance from June 1st, 1857 as stated in the referee’s report, and for this amount the plaintiff is entitled to judgment.