North River Bank v. Rogers

22 Wend. 649

• Court: New York Supreme Court
• Decided: October 15, 1840
• Status: Published

Opinion

By the Court,

Cowen, J.

Without deciding the question whether this court had power to grant the commission, there seems to bé a sufficient answer to this application on the merits. The language of the power from David to Samuel D. Rogers is very broad ; and although a bond and warrant of attorney to confess judgment are not inserted in so many words at full length, they are, it appears to me, clearly comprehended within words nearly as specific. The authority is, among other things, to execute any bond, warrant.or other writing, in the name of David Rogers. Even if these words were doubtful, they should be taken most strongly against the party who speaks by the power. But they are not so. They are arranged among various securities which Samuel D. Rogers was authorized to execute with a view to secure debts ; and it is difficult to conceive what was intended by the word warrant used in such a connection, unless it was a warrant of attorney to confess judgment. Such a warrant is a very common security, and the only difference between that and the other instruments enumerated, was, that it might be a better, because a broader security than the'bond and mortgage confessedly authorized by the power.

This motion seems to have been made mainly on the doctrine of Rossiter v. Rossiter, 8 Wendell, 494, that a general clause in a power of attorney shall not be regarded as enlarging the authority specifically delegated. That doctrine does not apply. Had the word warrant been omitted, or bad it been clearly used in such connection as to .confine its meaning to a custom-house instrument of that name, or to an instrument authorizing a distress for rent, as was supposed by the defendant’s counsel, there would have been great plausibility in saying that the words other writings, or the still more general words used in the power might come short of a warrant of attorney. But that is not so.

I think the judgment is -sustainable on the words of the power; and, therefore, it is not necessary to decide whether the silence and the conduct of D. Rogers may be taken as full evidence of a ratification. There is perhaps enought in the case to warrant a jury in saying that there was a ratification ; and I certainly would not so far disregard the evidence going to establish that, as to set aside this judgment without the verdict of a jury finding against the evidence. But the question raised on that evidence becomes immater rial in the view I take of the written pow.er.

Motion denied, with costs.