Taylor v. Harlow

11 Barb. 232

• Court: New York Supreme Court
• Decided: June 14, 1861
• Status: Published

Opinion

By the Court,

Edwards, J.

We think that the circuit judge was right in denying the motion for a nonsuit.

The next question which arises is, whether the power of attorney given by the plaintiff, and the settlement which was made under it, were admissible in evidence on the part of the defendants. There is no doubt as to the general principle, that in all instruments of a special character, the general terms which are used, must be construed in reference to the particular terms which form the subject matter of the instrument; and the case of Rossiter v. Rossiter, (8 Wend, 494,) which was cited on the argument, by the counsel for the plaintiff, illustrates the extent to which this principle is applied to powers of attorney.

It is not disputed that the power of attorney in this case was of a special character, but it is contended that even if it be so construed, the agent of the plaintiff did not exceed his authority. The powers which are particularly mentioned are “ to commence and prosecute any suit or suits, action or actions, which may arise out of, or proceed from any trespass or trespasses, waste or wastes, committed upon the real or personal property belonging to the plaintiff, in the town of Milton, Saratoga county, N. Y.” And to “ exercise a sound discretion in the settlement of any trespass or trespasses, so committed, as aforesaid,” &c. It is not denied by the plaintiff’s counsel that these words would authorize the attorney to settle all suits actually brought for any of the causes stated, but he contends that it was necessary that a suit should be commenced, before a settlement could be made. It will be observed that such are not the terms of the instrument; but even if they were, we think that applying the principle that all instruments must be. construed according to the spirit as well as the letter, the attorney would be authorized to make a settlement without the commencement of a suit. If it were otherwise, the result would be, that although a favorable offer of compromise should be made, the attorney could not make a settlement until a writ should be duly issued, but that immediately afterwards, he would have adequate powers for that purpose. In this case, however, to remove all question, the agent was authorized by the very letter of the power of attorney, to make a settlement without reference to a suit being commenced. But it is said, that as the receipt given upon the settlement was in full for the timber which formed the subject of this suit, the attorney exceeded his authority. The object of the power of attorney was to enable the agent to obtain satisfaction for the injury sustained by the plaintiff, in having his timber taken from his premises. He had his concurrent remedies of trespass and replevin. But if he had brought an action of trespass, and recovered damages, or had compromised the suit, he would not have been authorized to sue in replevin to recover the property taken. A recovery or settlement in trespass, would have been a satisfaction for the whole injury. And a settlement of the trespass had the same effect, though made before a suit was brought. We think that the judge erred in excluding the testimony offered, and a new trial must be granted. Costs to abide the event.

[New-York General Term, June 14, 1861.

Edmonds, Edwards and King. Justices.]