Napier v. McLeod

9 Wend. 120

• Court: New York Supreme Court
• Decided: May 15, 1832
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The only question in this case is, whether the power of attorney operated as an assignment to Napier of the interest of Rapelje and Bennett. If it did not, then each of them had the same interest in the partnership effects and in the debts due to the firm which Napier had; and then also it conferred on Napier no power which he did not possess without it. It might indeed be more satisfactory to the debtors of the firm, to know that the authority of the whole firm was concentrated in the person who was entrusted with the settlement of its concerns. The question, however, must be determined from the instrument itself. It does not in terms purport to convey the interest of Rapelje and Bennett; the only expression favorable to such a construction is the word irrevocably. Why, it is asked, should the power be irrevocable, unless they had parted with • their interest 1 But I apprehend the mere expression that the power is irrevocable, does not make it so ; if no interest is conveyed, and nothing but a bare authority, uncoupled with an interest is granted, the power which creates can destroy; and he who gives a naked authority can revoke it. In the case of Gram v. Cadwell, 5 Cowen, 491, there were recitals in the instrument which proved the whole interest to be in Gram, at least until the settlement of the partnership concerns ; there is nothing in this instrument which imports an assignment, or any thing but a mere authority. Rapelje and Bennett constitute Napier their attorney irrevocably, for them and in their names, and in the name of the firm, and on their behalf, to ask, demand, &c. It is not stated to be for his use. If the debts are to be received for them, it cannot be for his exclusive benefit; indeed the language is that he is to demand and receive the debts in the name of t^e £rm anf| on their behalf. The interest of the firm is not changed. So again, if there had been an asssignment of the interest of Rapelje and Bennett, it was very useless to authorize Napier to do as he pleased with his own; he is authorized to compound, to refer, and to act at discretion in liquidating the debts of the firm.' Were this a contract between the partners directly, and the letter of attorney were produced as a conveyance, I think we could not hesitate in deciding that it did not operate as a transfer of title. If this be so, then the release was valid, and the plea good ; and the replication of course is insufficient.

The defendant is entitled to judgment on the demurrer, with leave to the plaintiffs to amend on payment of costs.