28 N.C. 231 | N.C. | 1845
The defendant, in right of his wife, was entitled to a tenth part of the personal estate of one Clark, who had died intestate in the State of Alabama. He gave a power of attorney to the plaintiff (who was also one of the next of kin of Clark, and was going out to receive his share of the estate) to receive of the administrator his share also of the said estate, and bring it home. And the defendant agreed to pay one-sixth of the plaintiff's expenses, and also, as the plaintiff contended, agreed by parol to give him 10 per cent commissions on the value of his share which he should receive and bring to this State. The plaintiff made one trip to Alabama, and failed to get any part of the share of the personal estate due to the defendant. The defendant did not object to pay the one-sixth of the expenses of this trip, but he insisted that he was liable for no more, and, on the trial, offered evidence tending to show that he had revoked the power and agency of the plaintiff before he made the second trip. It was insisted on behalf of the plaintiff that if he, by the terms of the original agreement, was to be paid his expenses, and also 10 per cent for his time and trouble, then his power was coupled with an interest, and the defendant could not revoke it; and that let the evidence as to the revocation be either way, the plaintiff was therefore still entitled to recover his expenses of both trips, and, also, the 10 per cent on the value of the share brought by him, on a second trip, (232) to the defendant. The court charged the jury that if the original agreement was that the defendant was to pay one-sixth of the expenses and 10 per cent on the value of the share brought home to him, then the power of attorney was not revocable, and they should give the plaintiff damages for one-sixth of his expenses in both trips and also what they were satisfied was right for the per cent. The jury gave the plaintiff damages for more than the expenses of the first trip.
The defendant moved for a new trial for misdirection as to the law. The motion was overruled, judgment rendered, and the defendant appealed. The charge of the judge was, as we understand it, in conformity to the prayer of the plaintiff's counsel; and, received in that *174 light, we think that it was erroneous. A power of attorney or other authority is in general revocable from its nature; and the power of revoking an authority may be exercised at any moment before the actual execution of it. Paley on Agency, 184, 185. Even if it be true at law that a power which is part of a security for money, or coupled with an interest, cannot be revoked, yet the doctrine has no application to this case. The plaintiff neither when the power was given to him nor when the defendant contended that it was revoked had any interest in the distributive share of the defendant. If he did the labor, he was then to be compensated as above mentioned; but there was no obligation on the plaintiff to go to the west for the property, and when the defendant insisted that he had made the revocation, the defendant had never received any of the said property. We think that there must be a
PER CURIAM. Venire de novo.
Cited: Abbott v. Hunt,
