The opinion oí the court was delivered by
Marr, J.
This suit was brought to recover of Judah Hart, Samuel J. Hart, and Maurice J. Hart, in solido, the balance alleged to be due on seventeen promissory notes. The petition charges that these notes, were signed by Maurice J. Hart, agent for Judah Hart; that they were given for a loan of money which was used by Judah Hart in his business as pawnbroker; and that the other defendants were partners of Judah Hart in that business, and were benefited by the debt.
The allegations of the petition were put at issue by the separate answers of the defendants. The evidence satisfied the district judge that the alleged partnership did not exist; that neither Judah Hart nor Samuel J. Hart was liable on the notes ; and that Maurice J. Hart alone was bound. The plaintiff is appellant from the judgment rejecting the demand as to Judah and Samuel J. Hart, and condemning Maurice J. Hart for the whole amount demanded.
The controversy is narrowed down to the single question of the liability of Judah Hart.
For many years Judah Hart has been engaged in business in New Orleans as a pawnbroker, loaning money on pledges of jewelry alone. He makes his home in the city of New York, and visits New Orleans, for a few weeks only, once a year, in the winter, at the time of his annual sales of unredeemed pledges. He has ample means for this, the only business in which he is engaged. The business has been conducted by his two sons, employed as clerks, and by another person, also employed as clerk. In 1874, Maurice J. Hart ceased to be in the employ of his father, and was employed at the Oity Hall, in one of the departments of the city government, until the latter part of 1876, when he was appointed a deputy in the office of the criminal sheriff.
During the time that Maurice Hart was employed at the City Hall he dealt largely in “ City Transfers,” as they are called, that is, the claims of laborers and other employees of the corporation. He procured the means of purchasing or making loans on these claims from the Citizens’ Savings Bank ; and the loans made by the bank for this business during the months of July, August, September, and October, 1876, are represented by the seventeen notes sued on, payable to the bank on demand, dated to correspond with the respective dates of the loans, bearing interest at the rate of two per cent a month, and secured by pledge of the claims against the city, with power of sale, expressed [24]*24in each note. These notes are all signed “ Judah Hart, p. pro Maurice J. Hart.”
The proof shows that the officers of the banlc knew that Maurice Hart used the money represented by these notes in purchasing or making advances on these claims. They accepted his statement that he was the agent of his father, and authorized to sign the notes. He told them his power of attorney was lodged in the Germania Bank; but no officer of the Citizens’ Savings Bank ever saw this power until after this suit was brought; in fact, not until' it was produced on the trial, by the cashier of the Germania Bank, under subpoena duces tecum.
The following is a copy of that power, the only one offered in evidence, or proven to have been given by Judah Hart to Maurice:
“ New Okleans, La., January 25,1876.
“ To the Germania National Bank, New Orleans:
“ Sir, — Please take notice that Maurice J. Hart I hereby authorized as my attorney, to make deposits, draw, sign and indorse notes, checks, or bills of exchange; to draw whatever money or moneys that I have now or may have at my credit with you or others, and in general to transact all business in my name, place, and stead, hereby ratifying in advance all he may do. You have his signature herewith, which please respect when presented to you.
“ Your obedient servant,
“ (Signed) Judah Hart.”
All of this instrument, except the signature, and the words and figures Italicised, is the blank form which the Germania Bank, and, perhaps, most of the other banks in New Orleans, keep for their own convenience, and for the use of their customers, as occasion may require.
Judah Hart says that his object in giving this power was to enable Maurice to cheek for money that might be required from time to time in his business as pawnbroker; and that he gave it to Maurice, who was not in his employ, because he was the elder of his two sons; and if he had preferred the younger, there might have been bad feeling between the brothers. Besides, Samuel J. Hart was in bad health; and went to New York, temporarily, on that account.
The fact that this power was addressed specially to, and was lodged with, the Germania Bank indicates clearly that the sole object was to enable Maurice to represent his father in any business which he might have in that bank ; and to use the money and means of Judah Hart, at his credit in that bank, in and about the business and interest of Judah Hart. "We do not think any other bank in New Orleans would have been justified in dealing with Maurice J. Hart as the general agent of his father, on the faith of this power. It was ample for the business of [25]*25J udah Hart with, the Germania Bank : it was restricted to his business, and to his business with that bank.
There is no room for doubt that this was the purpose of Judah Hart in giving the power ; but it is possible for a power to be given in such terms that the attorney may abuse it, and that innocent third persons may acquire rights against the constituent which he never contemplated or intended. If Judah Hart had announced through the public press that Maurice J. Hart was his agent, or, by public notarial act, accessible to all, had conferred on Maurice J. Hart the powers specified in this instrument, without words restricting their exercise to his business with persons, or banks, or corporations named or specially indicated, a state of case might have been presented very different from that with which we are dealing. But Judah Hart did not choose to do either. There is no proof that he informed any person whomsoever that he had given this power ; and there is nothing in the case to show that it was ever exhibited to any other person besides the proper officers of the Ger-mania Bank. It could not have been 'used by Maurice to deceive any person ; for his father did not leave it in his custody.
In general, powers of attorney are designed to be used only about the business of the constituent. No matter how broad the terms may be in which they are conceived, those who deal with the attorney, knowing that he is abusing the power for his own purposes, aid him in perpetrating a fraud ; and acquire no rights against the constituent.
The officers of the Citizens’ Savings Bank had no communication with Judah Hart during the entire period of their large dealing with Maurice J. Hart; nor can they affirm that they were deceived or misled by the power. They were informed by Maurice that it was lodged at the Germania Bank ; but they do not pretend that they ever asked him to show them the original or a copy ; nor did they give themselves the trouble to ascertain what were its objects, its nature and extent.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion oí the court was delivered by
Marr, J.
This suit was brought to recover of Judah Hart, Samuel J. Hart, and Maurice J. Hart, in solido, the balance alleged to be due on seventeen promissory notes. The petition charges that these notes, were signed by Maurice J. Hart, agent for Judah Hart; that they were given for a loan of money which was used by Judah Hart in his business as pawnbroker; and that the other defendants were partners of Judah Hart in that business, and were benefited by the debt.
The allegations of the petition were put at issue by the separate answers of the defendants. The evidence satisfied the district judge that the alleged partnership did not exist; that neither Judah Hart nor Samuel J. Hart was liable on the notes ; and that Maurice J. Hart alone was bound. The plaintiff is appellant from the judgment rejecting the demand as to Judah and Samuel J. Hart, and condemning Maurice J. Hart for the whole amount demanded.
The controversy is narrowed down to the single question of the liability of Judah Hart.
For many years Judah Hart has been engaged in business in New Orleans as a pawnbroker, loaning money on pledges of jewelry alone. He makes his home in the city of New York, and visits New Orleans, for a few weeks only, once a year, in the winter, at the time of his annual sales of unredeemed pledges. He has ample means for this, the only business in which he is engaged. The business has been conducted by his two sons, employed as clerks, and by another person, also employed as clerk. In 1874, Maurice J. Hart ceased to be in the employ of his father, and was employed at the Oity Hall, in one of the departments of the city government, until the latter part of 1876, when he was appointed a deputy in the office of the criminal sheriff.
During the time that Maurice Hart was employed at the City Hall he dealt largely in “ City Transfers,” as they are called, that is, the claims of laborers and other employees of the corporation. He procured the means of purchasing or making loans on these claims from the Citizens’ Savings Bank ; and the loans made by the bank for this business during the months of July, August, September, and October, 1876, are represented by the seventeen notes sued on, payable to the bank on demand, dated to correspond with the respective dates of the loans, bearing interest at the rate of two per cent a month, and secured by pledge of the claims against the city, with power of sale, expressed [24]*24in each note. These notes are all signed “ Judah Hart, p. pro Maurice J. Hart.”
The proof shows that the officers of the banlc knew that Maurice Hart used the money represented by these notes in purchasing or making advances on these claims. They accepted his statement that he was the agent of his father, and authorized to sign the notes. He told them his power of attorney was lodged in the Germania Bank; but no officer of the Citizens’ Savings Bank ever saw this power until after this suit was brought; in fact, not until' it was produced on the trial, by the cashier of the Germania Bank, under subpoena duces tecum.
The following is a copy of that power, the only one offered in evidence, or proven to have been given by Judah Hart to Maurice:
“ New Okleans, La., January 25,1876.
“ To the Germania National Bank, New Orleans:
“ Sir, — Please take notice that Maurice J. Hart I hereby authorized as my attorney, to make deposits, draw, sign and indorse notes, checks, or bills of exchange; to draw whatever money or moneys that I have now or may have at my credit with you or others, and in general to transact all business in my name, place, and stead, hereby ratifying in advance all he may do. You have his signature herewith, which please respect when presented to you.
“ Your obedient servant,
“ (Signed) Judah Hart.”
All of this instrument, except the signature, and the words and figures Italicised, is the blank form which the Germania Bank, and, perhaps, most of the other banks in New Orleans, keep for their own convenience, and for the use of their customers, as occasion may require.
Judah Hart says that his object in giving this power was to enable Maurice to cheek for money that might be required from time to time in his business as pawnbroker; and that he gave it to Maurice, who was not in his employ, because he was the elder of his two sons; and if he had preferred the younger, there might have been bad feeling between the brothers. Besides, Samuel J. Hart was in bad health; and went to New York, temporarily, on that account.
The fact that this power was addressed specially to, and was lodged with, the Germania Bank indicates clearly that the sole object was to enable Maurice to represent his father in any business which he might have in that bank ; and to use the money and means of Judah Hart, at his credit in that bank, in and about the business and interest of Judah Hart. "We do not think any other bank in New Orleans would have been justified in dealing with Maurice J. Hart as the general agent of his father, on the faith of this power. It was ample for the business of [25]*25J udah Hart with, the Germania Bank : it was restricted to his business, and to his business with that bank.
There is no room for doubt that this was the purpose of Judah Hart in giving the power ; but it is possible for a power to be given in such terms that the attorney may abuse it, and that innocent third persons may acquire rights against the constituent which he never contemplated or intended. If Judah Hart had announced through the public press that Maurice J. Hart was his agent, or, by public notarial act, accessible to all, had conferred on Maurice J. Hart the powers specified in this instrument, without words restricting their exercise to his business with persons, or banks, or corporations named or specially indicated, a state of case might have been presented very different from that with which we are dealing. But Judah Hart did not choose to do either. There is no proof that he informed any person whomsoever that he had given this power ; and there is nothing in the case to show that it was ever exhibited to any other person besides the proper officers of the Ger-mania Bank. It could not have been 'used by Maurice to deceive any person ; for his father did not leave it in his custody.
In general, powers of attorney are designed to be used only about the business of the constituent. No matter how broad the terms may be in which they are conceived, those who deal with the attorney, knowing that he is abusing the power for his own purposes, aid him in perpetrating a fraud ; and acquire no rights against the constituent.
The officers of the Citizens’ Savings Bank had no communication with Judah Hart during the entire period of their large dealing with Maurice J. Hart; nor can they affirm that they were deceived or misled by the power. They were informed by Maurice that it was lodged at the Germania Bank ; but they do not pretend that they ever asked him to show them the original or a copy ; nor did they give themselves the trouble to ascertain what were its objects, its nature and extent. Judah Hart states that'he had no business with the bank ; that he never dealt in city debts ; that he never borrowed money for his business, having ample means of his own ; that he knew nothing of the business which Maurice was engaged in ; and that he had no interest in that business, and derived no benefit from it.
Each one of the seventeen notes sued on is a promissory note and a contract of pledge ; and the one cannot be separated from the other. The law requires the power to pledge to be express and special; and there is no such power in this case. If the officers of the Savings Bank believed that the business which Maurice was doing with the means obtained from the bank was really for account of his father, they could not have supposed that the property pledged belonged to Maurice, or to any other person than Judah Hart. According to their theory, they [26]*26not only accepted these several pledges, by the attorney, of the property of his constituent without the shadow of authority, but, in accordance with the terms of the several contracts, they sold and disposed of that property, without the intervention of justice. The charter of the bank, Act of 1872, p. 120, required that the value of the property so pledged should exceed, by one third, the amount of the loan ; and yet, this whole affair was so managed that, after applying the proceeds of the sale of this property to the loan debt, there remained the large balance of §7500, bearing interest at two per cent a month, which the bank claims of Judah Hart.
Proper inquiry by the officers of the bank would have satisfied them that the agency of Maurice J. Hart was limited to his father’s business with the Germania Bank; and that this power did not authorize Maurice to buy, or to sell, or to pledge, or to borrow, or to loan for account of his father. They might also have learned, by inquiry at Judah Hart’s well-known, long-established, place of business, that he was a pawnbroker, lending money only on pledges of jewelry ; a business altogether different from that of borrowing money at two per cent a month, to be used in the extra hazardous speculation in claims against the city which has given rise to this litigation.
If any loss has fallen upon the bank in this ease, it is to be attributed solely to the extraordinary want of care and diligence which characterizes its dealing with one professing to act under delegated authority; and for this Judah Hart is not answerable.
The judgment appealed from is affirmed with costs.