169 Ind. App. 319 | Ind. Ct. App. | 1976
Plaintiff-appellee Richard L. Howard commenced this action in the trial court against defendant-appellant Slavka Andonov seeking to set aside certain deeds conveying title to appellant of certain real estate located in Lake County, Indiana. The trial court entered a judgment in favor of appellee, and appellant subsequently perfected this appeal.
The facts most favorable to the appellee as revealed by the record establish that one Christo Christoff, a resident of Plovdiv, Bulgaria, is the sole heir of one Anton Pappas, who died a resident of Lake County. The estate of Anton Pappas was administered, in part, by Christo Andonov, who purchased certain real estate from such estate with the written
During or after the administration of the estate of Anton Pappas, Christo Christoff executed a power of attorney, authorizing a particular law firm in New York City to represent him in the settlement of such estate, giving such law firm “full power of substitution ***.”
Thereafter, the name of such law firm was marked out on such power of attorney by unknown persons, and the words “Chief of Consular office to the Bulgarian Embassy at Washington, D.C.” were inserted in its place by interlineation. There is no evidence that Christo Christoff authorized or consented to such substitution nor that it was approved by the original designee. Later, in February of 1968, Lubomir Kot-zev, then “Chief of the Consular Office of the Embassy of the People’s Republic of Bulgaria”, executed a purported “SUBSTITUTION” authorizing attorney Richard L. Howard to act as an attorney-in-fact for Christo Christoff under the aforementioned power of attorney.
It is under such purported authority that Richard L. Howard commenced this action in the trial court on behalf of Christo Christoff. On appeal, the appellant asserts that there is no evidence that Howard has any authority to maintain this action.
It is fundamental that the execution of a power of attorney creates a type of agency relationship. See, Standard Accident Ins. Co. v. Ayres (1940), 217 Ind. 422, 427, 28 N.E. 2d 50, 52. It is equally fundamental that such an agency relationship is contractual, existing only as the result of the mutual consent of both the principal and the agent. Department of Treasury v. Ice Service, Inc. (1942), 220 Ind. 64, 67-8, 41 N.E.2d 201, 203.
The power of attorney at issue in the case at bar appointed
It cannot be disputed that a party competent to contract may so authorize others to act in his behalf. See, Caley v. Morgan (1888), 114 Ind. 350, 16 N.E. 790. However, in the absence of such an express authorization, such authority will not normally be implied, due to the personal, fiduciary nature of the principal-agent relationship. As stated by the court in Knudsen v. Torrington Company (2d Cir. 1958), 254 F. 2d 283, at 286:
“The personal nature of an agency contract arises as an incident of the legal relationship. An agent may be an independent contractor, not subject to control in the manner in which he performs his duties, but he is an agent nevertheless, and from this, agency relation flow certain legal consequences. The fact of the relation implies a promise to use care and skill and imposes fiduciary obligations of loyalty and obedience not normally present in other bilateral agreements. See Commonwealth v. Minds Coal Mining Corp., 1948, 360 Pa. 7, 60 A. 2d 14. Because in fact the agency relationship is normally grounded on the trust and confidence the principal places in his agent, the law has come to impose these personal obligations and duties of the agent and to look upon the relationship as being personal in nature as a matter of law. As a consequence agency duties ordinarily cannot be delegated by the assignment of the contract without the express or implied authority of the principal, see Wetherell Bros. Co. v. United States Steel Co., 1 Cir., 1952, 200 F. 2d 761; 4 Corbin, Contracts, § 865 (1951) ; 10 A.L.R. 653, or by the substitution of another, where the duties involve any personal discretion, skill or judgment. See Brown v. Mt. Holly Nat. Bank, 1927, 288 Pa. 478, 136 A. 773; Restatement, Agency, §78 (1933).”
The judgment of the trial court must be reversed.
Reversed.
Note. — Reported at 348 N. E. 2d 84.