delivered the opinion of the court.
This :is an action, of assumpsit commenced by appellant-for money had and received by appellee.: The declaration contains,'but one count, setting.forth that the appellee bargained; with. the ■ County Superintendent Of Na'ssau county for the .-sale,-..and .-.conveyance, to the plaintiff of, certain lots *687of land for the price of $700, and the appellee executed and delivered to the Superintendent a deed .of the. lots, and received from him an order on the Treasurer of the. County-Board for that sum, which was thereupon paid to the appellee by the Treasurer; that the contract tor'said ,lots.wás without the authority of the plaintiffs; the payment was without their consent; they repudiated the .acts ;of; the Superintendent as soon as they discovered the payment, refused to receive the deed, and demanded the return of thé money, which the appellee refused. The plaintiffs have-further inserted in the body of tbie declaration the statement that .the defendant had not a title in fee of the premises, and could not deliver the title and seisin according to the covenants in the deed. This is an unnecessary recital of a fact not material to the proper and complete statement of a cause of action for money had and received. The declaration is complete without it, and this recital is surplusage.
The defendant deniurrs’ to the declaration,'assuming that the action-should be upon the covenants in the deed, and the court gave judgment sustaining the demurrer; ;
By the statute, (Acts of 1869, Chapter 1686-, Sections 14 to 19 inclusive), the Board of Public Instruction of the county is a body corporate, and is authorized to purchase and hold real estate- for school-house- sites; ' and to manage and control the school moneys of the county; and the County Supérinténdent of Schools is" made the Secretary and Agent of the Board. .(See. 17).
The Superintendent has no authority to contract for the purchase of land for school purposes, without -being expressly authorized by the .board. The County Bqardjof Nassau county does not appear to have conferred any authority upon the Superintendent to pufchase the lots in question)' hr to pay for them- out-of the public' funds. ^ " A ’Puc
.The defendant" therefore cannot hold'-the plaintiffs*to the contract made with their’Secretary and Agent'úntil they:be shown-to have authorized Or ratified It; and ' itfollowsv.that *688the money-in question was wrongfully .paid, by the Agent of the plaintiffs, and wrongfully received by the defendant. He is therefore, upon the case made by the declaration, liable to the plaintiffs for the money so received, and the form of action chosen is appropriate. ,,
Had the plaintiffs brought their action in covenant, they would have assumed the validity of the, purchase of, the lots by the Superintendent, which purchase, on the contrary, they repudiated when it was brought to their notice, and demanded the return of the money. . .
The judgment-of the Circuit Court is reversed. '