It appears by the facts in this case, that the plaintiff, being authorized to insure the defendant’s interest in the freight of the brig Nile, did effect insurance on the whole freight, for the benefit of whom it might concern : and that a loss imme*506cnately after taking place, he undertook to settle, and did settle it with the company who made the insurance.

The authority of an agent to effect insurance carries with it the right to adjust and settle the loss arising under the policy, while the authority remains unrevoked, and, as a duty connected with such authority, he is bound, in the event of a loss, to apply to the underwriters for payment, and is responsible for his neglect, if any injury is sustained by reason of it. Richardson v. Anderson, 1 Campb. 43, note. Power v. Butcher, 10 Barn. & Cres. 329.

The plaintiff did not receive the full amount of the insurance, but the defendant adopts the settlement made by him and claims his share of the loss, agreeably to such settlement; and he is en titled, we think, to receive it, unless the defence Set up by the plaintiff presents a valid objection to his recovery. The plaintiff insists that he did not receive from the underwriters the defendant’s share of the insurance, and that the defendant’s remedy is against the company ; and it appears by the facts admitted, that when he claimed payment of the loss, the office declined paying any thing upon the defendant’s interest, on the ground that the plaintiff had no authority to insure the defendant’s share. And the plaintiff, yielding to this objection, adjusted the loss and received a sum which in amount excluded the defendant’s interest. But the receipt given and written on the back of the record was 61 in full for all losses on the within policy.” The plaintiff contends that the receipt only binds himself and those for whom he professed to act, and that it does not prevent the defendant from recovering his share of the loss from the company. And many "authorities have been cited to prove that a receipt is nothing more than an admission of money received, and may be explained and varied by parol evidence. The cases certainly are numerous to establish the position that receipts are merely prima facie evidence of the payment of money, and are open to explanation, and may be varied and controlled by other evidence. Stratton v. Rastall, 2 T. R. 366. Lampon v. Corke, 5 Barn. & Ald. 612. Graves v. Key, 3 Barn. & Adolph. 313. Stackpole v. Arnold, 11 Mass. 27. Wilkinson v. Scott, 17 Mass. 257 Brooks v. White, 2 Met. 283.

*507But in the present case, this is not a simple receipt for money. It is the adjustment and settlement of the loss claimed under the contract. It is not only an admission, in its terms, as a receipt in full for all losses on the policy, but it sets out the specific interest insured and deducts the return premium for the amount short insured ; thus adjusting the loss by the plaintiff’s allowing that the defendant’s interest was not covered by the policy. And it is well settled, that an adjustment of a loss, made in good faith, will not be set aside, unless upon satisfactory evidence of its having been made under a mistake of facts not known at the time. Harden v. Gordon, 2 Mason, 561, 562. Why the defendant’s interest was stricken out as not being insured by the policy, we cannot say ; nor are we called upon to decide whether the underwriters, in consequence of the settlement, are absolutely discharged from any further claim that may be made upon them by the plaintiff, in his own name, or in that of the defendant — they being no parties to this suit.

But we do not think it either necessary or right to turn the defendant round to make his claim upon the company, as in consequence of the plaintiff’s conduct he might be unable to present even a prima facie case, without the testimony, and consequent release of the plaintiff; and he would thus be called upon to put his demand against the plaintiff, which we consider just, at hazard.

It has been argued, that if the defendant has a claim upon the plaintiff, his remedy is by an action on the case for the damage sustained by the neglect of the plaintiff; and that assumpsit for money had and received will not lie. But we are of opinion that the defendant, being entitled to look to the plaintiff for payment of his loss, may, if he pleases, waive his right to demand the whole amount which he might recover in an action on the case, and claim his share or proportion of the sum actually received by the plaintiff; and for such proportion assumpsit will lie — the plaintiff having received the money. The claim of the defendant, as made by him, being founded on contract, can, by virtue of the Rev. Sts. c. 96, §§ 2, 3, be setoff against the plaintiff’s demand

Exceptions overruled.