Bonney v. SmithBonney v. Smith
- Reporters:
- Before:
- Skinner
This was an action of assumpsit on a promissory note executed by the defendant to the plaintiff. The dеfendant pleaded in bar four special pleas, to each of which the plaintiff demurred. The сourt sustained the demurrer and the defendant had judgment. The first plea alleges that the sole considerаtion of the note was a dee‘d for a lot in Peoria, as the property of Peoria county; sets forth the deed, which is an ordinary deed of quit-claim, executed by plaintiff as agent and commissioner оf the county of Peoria, and an order of the board of supervisors of Peoria county, apрointing the plaintiff commissioner to sell and convey, at discretion, all interest of the county in the lot dеscribed in the deed, and allowing to plaintiff the one-half of the proceeds of sales, as cоmpensation for transacting the business. This plea is no defence to the action. The deed of quit-claim was sufficient consideration for the note, and the authority of the plaintiff to execute it is apparent from the plea. The board of supervisors, as successors of the County Commissioners’ Court, had power to appoint the plaintiff commissioner, and through him convey the interest of the county in thе lot.
The second plea substantially alleges a revocation of the authority and appоintment of the plaintiff, by an order for that purpose, made by the appointing power, and entered of record in the County Court, prior to the sale and conveyance by the plaintiff. No question was mаde upon the argument as to the sufficiency of the act of revocation to effect the рurpose designed, and to avoid, for all purposes, the power conferred, if the power wаs such as could be revoked by the act of the body from which it emanated. If the appointment constituted a power, coupled with an interest, it was irrevocable, and the act of revocation would have no effect upon the authority conferred.
A power, coupled with cm interest, must create an interest in the thing itself upon which the power is to operate; the power and estate must be united, or be coexistent, and this class of powers survive the principal and may be executed in the name of the attorney. Hunt v. Rousmaniere, 8 Wheaton, 174; Story on Agency, 483; Comyn‘s Digest, title “Attorney” C. 9 and 10, Vol. I, 774; 2 Kent‘s Com. 644, 646.
Another сlass of powers is where they are created upon a valuable consideration, and to оperate as a transfer, mortgage or security to another, although the power can only be executed in the name of the principal. Reynolds v. Squire, 11 John. 47; Walsh v. Whitcomb, Esp. R. 565; Spence v. Wilson, 4 Munf. 130; DeForrest v. Bates, 1 Edwards’ Chy. R. 394; Story on Agency, 477.
These are irrevocable by the act of the principal, for they are founded upon sufficient consideration, and created to subserve purposes in which another has an interest. Another class is where the attorney has an interest only arising out of the execution of the power, as in the proceeds, as a compensation for the business of its execution. 8 Wheaton, 174; 2 Kent’s Com. 644. This power is of the latter class, and revocable by the principal, although the principal might perhaps be liable to thе agent or attorney for any damages sustained. It is a naked power, with an interest in the proceeds, based only upon its execution, which execution is dependent upon the continuing will of the princiрal. Mr. Story lays down this rule : that where the power is expressly declared to be irrevocable, and the attorney has an interest in its execution, and both of these circumstances concur, the powеr is irrevocable by the principal. Story on Agency, 476. Here there is no stipulation against the exerсise of the right of revocation, and upon general principles the right remains. The third plea is substantiаlly like the first, and in another form questions the sufficiency of the authority of the plaintiff to make the sale аnd deed. The fourth plea alleges that the board of supervisors, after the appointment of thе plaintiff, appointed a committee of their number to consult with the plaintiff and fix upon the price at which the property of the county should be sold by the plaintiff, and resolved that no lot should be sold until the price should be fixed by the committee and the plaintiff; and that no price has been so fixed. For аught that appears from the plea, this resolution may have been adopted after the execution of the conveyance; but at most, it is but a regulation between the parties to the power, in no way affecting the authority of the plaintiff under the power, so far as third persons, not cognizant of it, are concerned, and does not attempt to revoke the power conferred on the plaintiff to convey.
The demurrer should have been sustained to the first, third and fourth pleas, but the defendant was entitled to judgment on the demurrer to the second plea; that plea being, if true, a bar to the plaintiff’s action.
Judgment affirmed.