Wells & Spring v. Evans

20 Wend. 251

• Court: New York Supreme Court
• Decided: October 15, 1838
• Status: Published

Opinion

By the court, Co wen, J.

The points made on the argument in favor of a new trial, consist of three : first, That the proof proposed was proper to make out a partial payment, with an accord and satisfaction for the residue of the debt due from Hill, the endorser of the note ; or, in other words, a composition and discharge of Hill, for whose accommodation the defendants made the note; secondly, That Thomas Evans, one of the defendants’ firm, without the knowledge or assent of his copartners, drew the note in blank, to borrow money on his own individual account; and that Hill, without authority, perverted it to the purpose of purchasing goods of the plaintiffs for himself. Each of these grounds aim at a. total bar to the action. A third point insists that the evidence offered and rejected, or some part of it, was at least admissable to show payment of the note for so much of the 9,000 dollars received by the plaintiffs’ attorneys as was applicable to the note in question.

The difficulty of maintaining the first ground of defence, lies in the form which Grannis and Mead, the plaintiffs’ attorneys, adopted for effecting the composition. It is added, also, by the plaintiffs’ counsel, that Spring alone could not seal the power of attorney for himself and Wells, so as to make it binding on both ; that his act is within the principle which forbids one partner to bind another by seal. That, however, is only where the firm, is sought to be charged ; not where the object is to discharge a debt due to it. One of two joint creditors or partners may release for both; each in this respect having an interest with a power which has been likened to that of a co-executor. Pierson v. Hooker, 3 Johns. R. 68. McBride v. Hagan, 1 Wendell, 326, 334. As each may, in respect to his interest and power over the debt, give a release personally, there cannot be a doubt that he may delegate this power by seal to another. The judge, therefore, properly received the power of attorney in evidence, under the proposition to follow it up with a release or composition under it. The acts of the attorneys, however, were utterly inefficient. The instrument of December 12th, 1835, which, in the name of the plaintiffs, would have itself been a complete release, does not even allude to them. The clauses of receipt, composition and covenant, with the signatures and seals which it contains, are in the name of Grannis and Mead, without calling themselves attorneys. Taking the intended release by itself, therefore, it is merely void in respect to the plaintiffs within all the cases. The form in which attorneys must execute this kind of power, was very clearly pointed out as long ago as Combes' case, 9 Rep. 76, 77. The rule there laid down is, “ that when any one has authority as attorney to do any act, he ought to do it in his name who gives the authority ; for he appoints the attorney to be in his place, and to represent his person ; and, therefore, the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gave the authority.” The case allows some little latitude for acts in pais, as where the attorney is to surrender or deliver seisin. He may then say, “ I, as attorney, do the act.” “ But,” adds the case, “ if attorneys have power by writing to make leases by indenture, for years, &c. they cannot make indentures in their own names, but in the name of him who gives them warrant.” The' only exception there mentioned is, of a power given by will, which must of necessity be executed in the name of the attorney, because the principal is dead. This case was much considered in Elwell v. Shaw, 16 Mass. R. 42, and applied with a rigor far beyond what is necessary to shew the release in question a nullity. Jonathan Elwell, the demand-ant, executed a power of attorney to Joshua Elwell, to convey the premises in question. The latter conveyed by deed, reciting the power ; and proceeded: “ I, the said Joshua, by virtue of the power aforesaid, in consideration, &c. do hereby bargain, &c. and convey to J. S., &c.” signed “Joshua Elwell. (L. S.)” The deed was holden void. 1 Greenl. R. 339, S. C. The rule has been applied to various written contracts, both executory and executed, sealed and unsealed; and as to bills of exchange and promissory notes, Thomas v. Bishop, 2 Str. 955 ; Elmy v. Lye, 15 East, 7 ; Stackpole v. Arnold, 11 Mass. R. 27; Pentz v. Stanton, 10 Wendell, 271, and the cases there cited by Sutherland, J.; Thatcher v. Dinsmore, 5 Mass. R. 299 ; Forster v. Fuller, 6 id. 58; Buffum v. Chadwick, 8 id. 103; and other simple contracts, Arfridson v. Ladd, 12 Mass. R. 173; and a sealed bill of sale of a personal chattel, Welsh v. Parish, I Hill's Law R. 155. In the last case, the bill of sale ran thus : “ I, Wm. Usher, jr., attorney in fact of Patrick Usher, owner of the brig Junietta, &c. grant, bargain and sell, &c.” Signed “ Wm. Usher, jr., attorney for Patrick Usher.” (L. S.) The deed was held void after very full consideration. Mr. Justice Johnson cites and adopts some very pertinent remarks relative to the execution of leases by attorney, made in Bacon’s Abridgment, Leases and Terms for years, (I.) pl. 10. These are to the effect that an attorney having no interest in the land, even his adding, “ by virtue of the letter of attorney,” will not help a lease which is made in his own name ; for, as he derived no interest from the letter of attorney, he can convey none. And though an act in pais, done in that form may be good, yet, as in leasing, the deed alone conveys the interest, and is the very essence of the lease, it must be made in the name of the person having the interest; otherwise it is so merely void, that it will not estop even the attorney. See 4 Bac. Abr. Phila. ed. of 1813, p. 140, 141, for all this matter much more at length. These remarks apply with emphasis to the case in hand. The release does not even profess to be made by attorney ; yet, for the purposes of a full defence, it must be brought to enure not only as a receipt, but as a composition deed, a covenant to give up the note and to accept real estate, &c. in respect to which it is most essential that the holder of the note should be named as the party. In Prior v. Coulter, cited in 1 Hill, 160, the principal, by letter of attorney, authorized his agent to sell a patent right for machinery. The agent made a bill of sale or deed thus : “ I, as the agent, attorney, &c.” and it was signed by the agent as attorney for the principal. This was held to be a bad execution of the power, and not binding on the principal.

It is, indeed, true of these cases, as was said on the argument in reply, that they relate to contracts either executory or executed, not to releases, discharges or deeds of composition. But it is difficult to perceive any difference in principle; and no exception is made by the cases beyond those which I have stated. It is impossible to find any general rule of law entirely filled up in the books of reports by apposite illustrations in all its bearings. The one under consideration is as nearly so as almost any other, even were we to stop with the books already cited. On farther search, however, I find that we are not without an authoritative application of the rule to a case of a mere relinquishment of right. In Clarke’s lessee v. Courtney, 5 Peters, 319, a power of attorney was set up to relinquish and disclaim title, as it was called, in favor of the state of Kentucky, under a statute of 1794 ; and this being executed thus : “I, the said C. L. C., attorney as aforesaid, &c., do hereby relinquish, &c. In witness whereof the said C. L. C., attorney as aforesaid, has hereunto, &c. C. L. C. (L. S.),” it was holden void within Combe’s case. Vide id. 349, 350, et seq. per Story, J. and the cases cited by him at p. 351.

The paper set up as a release by Grannis & Mead being void on its face as a defective execution of the power, it cannot be made available by parol proof that it was intended as a good execution, or, as it is expressed by the offer, that the instrument was executed under and in pursuance of the power, and that the plaintiffs recognized the act by receiving their share of the $9,000. To such evidence, there are several clear objections. The legal effect of the instrument was to bind Grannis & Mead personally; and evidence that it was intended to bind others would violate the rule which forbids the varying of a written instrument by proof aliunde. The rule was considered and applied to an instrument of this character, in Stackpole v. Arnold, 11 Mass. R. 27. See also Arfridson v. Ladd, 12 id. 173, and Pattison v. Hull, 9 Cowen, 747,753. Again : admitting a parol authority or recognition to be valid so far as this deed of composition respects real estate, and that it is not within the statute of frauds, 2 R. S. 69, 8, 9, 2d ed.; 1 Sug. Vend. Brookfield ed. of 1836, p. 120 to 125, and the cases there cited, still, the authority itself wanting a seal, it would, according to Blood v. Goodrich, 9 Wendell, 68, be unavailable as a power for the purpose of making a deed. Vide id. 76, and the cases there cited by Savage, C. J.

It is proper to notice in this place, that the objection to the instrument executed by Grannis & Mead, which included a receipt for $9,000, in connexion with the fact that a portion of that sum falling to the plaintiffs’ share was received in payment pro tanto, was not urged at the trial, any farther than as it went to make out a full defence by validating the instrument; and the judge afterwards remarked that the defendants were at liberty to prove a payment or satisfaction, partial or total, in money or by a conveyance of land. But the plaintiffs did not offer any evidence for that purpose. It is now said, for the first time in the cause, that the deed of Grannis & Mead, embodying the receipt of an agent within the scope of his authority, especially when followed by the offered proof of an acceptance of the money, would have proved at least a payment of so much ; and complaint is made that, by the ruling of the judge, the defendants were cut off from a proportionable abatement of the damages. There can be no doubt, from what appears in the case as far as it went, that the defendants might, if they would, have abated the recovery by showing what portion of the sum received should have gone in extinguishment. But it is equally true that so far from being precluded that right, the plaintiffs forbore to question it, and the judge expressly suggested that the defendants might prove a payment. Yet, it is remarkable that they neglected all proof showing an apportionment, and withheld any proposition that the $9,000, or any part of it, should be applied as payment, even under the proof already given. They virtually answered, “ We go the whole defence, or none.” Why that should be so, we are not^to inquire. Probably they were conscious of some frailty even in this partial defence, which would be fatal to it 3 and we are not to interfere on the ground that there was a possible pertinency in the evidence which the defendants themselves would not avow even under the invitation of the judge. Independent of that, it was their duty to declare the object of their evidence. It is every day’s experience that evidence may be relevant for one purpose, while for another it is impertinent. 1 Phil. Ev. 7 ed. 169. Per Lord Tenterden, C. J. in Taylor v. Williams, 2 Barn. & Adol. 833.

The objection that the note was issued by Thomas Evans for his own benefit as a member of his firm, and that the blank for the sum was filled and the note negotiated without authority to use it in the purchase of goods, was not much insisted on in argument; and is clearly not available as against these plaintiffs who are bona fide holders, Vallett v. Parker, 6 Wendell, 615. Dean v. Hall, 17 Wendell, 214, 221.

The motion for a new trial must be denied.