Albro v. Merritt

97 Mass. 517

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1867
• Status: Published

Opinion

Chapman, J.

The jury having found that the defendant prosecuted his action against Marshall under the power of attorney made by the plaintiff directly to him, the plaintiff is entitled to recover, unless that instrument is to be treated as a nullity. The defendant contends that it should be so treated, because the plaintiff had already given to Morse a power of attorney irrevocable, authorizing him to prosecute the action, and this power contained a power of substitution, and had been assigned to the defendant. Passing by the question, whether the defendant would not have been equally liable if he had prosecuted his action under that assignment, it is clear that the power given to him is not a nullity. The labor and trouble of the plaintiff in giving it is a sufficient consideration for the defendant’s promise of indemnity. Another equally good consideration is the advantage it gave the defendant of establishing his authority to prosecute the action without proving the execution of the plaintiff’s power to Morse, or the assignment of that power to him. See Kerr v. Lucas, 1 Allen, 279, and authorities there cited. It was a valid power, and the defendant made use of it, and ought to indemnify the plaintiff according to his promise.

Exceptions overruled.