Ames v. Drew

31 N.H. 475 | Superior Court of New Hampshire | 1855

Bell, J.

The money loaned to the defendant was the plaintiff’s property, the loan was made by him in his own right, the note was made payable to him, and the debt is due to him, and must be recovered by him, unless he has transferred his interest in it, as the defendant contends, through the agency of his son. No unauthorized act of the son could, in any way, affect his rights. The question whether the boy had authority to transfer the note to Calley, was submitted to the jury, with proper instructions, and their decision is conclusive, because, as the defendant contends, the court will not, ordinarily, set aside a verdict, in a case where different persons might reasonably differ in their conclusions, merely because they would have arrived at a different result from that of the jury. Wendell v. Safford, 12 N. H. Rep. 178. The only question before us is the competency of the evidence laid before the jury to prove the authority.

There is here no direct proof of any authority given by the plaintiff to his son, to sell or transfer this note, or of any approval of his acts. Circumstances are relied upon which are supposed to be sufficient to justify the inference that he had such authority. Thefirst of theseistheevidenceof Huse, who testifies to three instances in which the plaintiff had recognized his son as his agent to borrow money of the witness, by accounting and settling for it. It is clear that an agency may arise, by implication, from repeated acts done by the agent, with the tacit consent or acquiescence of the principal, but in every such case the authority implied is deemed to be limited to acts of the like nature, and to dealings of the same kind. Story on Agency 80; Lloyd’s Paley on Agency 211. Thus an authority to sell goods in a shop, implied from the acquiescence of the owner, does not justify the inference of an authority to buy, for they are acts distinct in their nature, and not dependent upon or incidents of each other. Story on Agen. 83; Lloyd’s Paley on Agen. 167. A clerk, intrusted to accept or indorse bills or notes, would not thereby possess an authority to purchase or sell goods for his principal. Story on Agency 84. An authority to sign notes cannot be inferred from a person’s acting as clerk to a merchant. Terry v. Fargo, 10 Johns. 114. It seems, therefore, clear to us that the only legitimate tendency of this evidence, relating to the borrowing of money, is to prove an authority or agency to borrow money. It is not evidence of an authority to accept bills, or indorse notes, in the case of the same person from whom money was borrowed, and it might well be doubted if it would be evidence of a power to borrow money of any other person, if unaccompanied by other circumstances, This evidence was, consequently, incompetent to prove a power to sell the note in question.

Neal, another witness, testified to a conversation between these parties, in which the plaintiff told the defendant that he had said he might let the boy have the note or the money, and L. B. Drew states a conversation between them, in which the defendant reminded the plaintiff that he said “ leave the note with me or William.” These declarations tend to prove not a general agency, but merely a special authority to receive this note or the money due on it. They tend to justify the defendant in giving his note to the son, and show that the note was in the possession of the son by his father’s authority, and that the son might, perhaps, have rightfully received the money upon if. The mere fact of such possession of the note, if it had been payable to bearer, or had been indorsed in blank, would be prima facie evidence of an authority to receive payment. Chit. Bills 395. But an agent employed to make, or negotiate, or conclude a contract, is not as of course to be treated as having authority to receive payments under it. Stor. Ag. 88. An agent to receive payment may not receive it in any mode he chooses; he has ordinarily power to receive it in money only, and when and after it becomes due, and not before it becomes due. Stor. Ag. 88-9. Nor is he authorized to commute the debt for another thing, nor to compound it, or to release it upon a composition, or to submit the debt or demand to arbitration. Stor. Ag. 89. Neither the authority to receive the note nor the money as expressed, nor the implied authority to receive payment, resulting from possession of the note, even if it had been indorsed, have any tendency to prove an agency or authority to sell the note at a discount, as was done in this ease, nor to sell it at all.

The only further evidence is the testimony of Calley, who states that the plaintiff, in a conversation he had with him, did not claim the note of him, when he wished him to scare the boy to give up the money. But there is nothing in this conversation which can be construed into an approval or ratification of the boy’s conduct, or admission that the boy had a right to sell the note.

It was immaterial whether the jury did or did not believe the testimony of the boy. He denied that he had any authority to sell the note. This testimony merely negatived a fact, which the defendant was bound to prove to establish his defence. If there was no legal evidence from other witnesses of his authority, a jury could not infer such authority from their disbelief of his evidence. Neither would the declarations made by the boy, at the time he sold the note to Calley, or when he offered it to Huse, be competent to prove any authority to sell the note, as agent of his father, if indeed they would alone be competent to prove anything, for he in terms claimed the right to sell the note, because it was his own property, and not in the character of an agent for his father.

There being then no’ competent evidence of any authority to sell this note,

Verdict must be set aside.