Coulter v. Portland Trust Co., 20 Or. 469

20 Or. 469 | Or. | 1891

Lead Opinion

Strahan, C. J.

— The first question to which our attention will be directed is the construction to be given the power of attorney executed by Howard H. Palmer to his wife, E. A. Palmer, on the 17th day of March, 1887. By that instru. ment he created E. A. Palmer his true and lawful attorney in fact and empowered her to transact any business what, ever in a lawful manner in connection with or necessary to the buying, selling, transferring or mortgaging real estate in said county and state, including the signing of all necessary papers in order to transact any such business relating to real estate transactions, also including the sealing and acknowledging the execution of said papers and the delivery of the same. In this case, there is no question as to the power to buy or mortgage real estate, because the agent did not assume to act under the power created by those words. The only question that we need to consider is the extent of the agent’s power conferred by the words “selling or transferring.” Gouldy v. Metcalf, 75 Tex. 455, 16 Am. St. Rep. 912, is a recent case on this subject. In that case the attorney was authorized by the power “ to buy, sell or exchange property $ to receive and receipt for money; to sell and dispose of property; to give bills of sale thereto or to sell and transfer real estate, and to execute deeds thereto, or to do and perform any lawful act in or about or concerning my (the principal’s) business as fully and completely as if I were personally present,” and the court held that this did not authorize the attorneys to execute an assignment of the principal’s property for the benefit of his creditors. In passing upon this question, the court said: “ The language used in the grant of general power is certainly very comprehensive, but the established rule of construction limits the authority derived by the general grant of power to the acts authorized by the terms employed in granting the special powers. When an authority is conferred upon an agent by a formal instrument, as by a power of attorney, there are two rules of construction to be carefully attended to: (1) The meaning of the general words in the instrument will be restricted by the context, and construed accordingly. (2) The authority will be construed strictly, so as to exclude the exercise of any power which is not warranted either by the actual terms used, or as a necessary means of executing the authority with effect.” (Ewell’s Evans, Ag. 204; Reese v. Medlock, 27 Tex. 120, 84 Am. Dec. 611.)

Bo iu Holbrook v. McCarthy, 61 Cal. 216, which was a sale of land under a power of attorney, the terms of which were not followed, the court held the act of the agent of no binding force upon the principal. Bo also in Morris v. Watson, 15 Minn. 212, the agent had a general power to sell and convey real estate, and assuming to aot under such power he mortgaged it, and the court held the act void. Bo in- First National Bank of Trenton, Mo. v. Gay, 63 Mo. 33, 21 Am. Rep. 430, the agent had authority to use or sign the principal’s name for the purpose of obtaining accommodation at a bank, which of necessity, remarked the court, authorized the execution of a note, and that the law would give effect to such purpose in the usual and ordinary way; but that such power did not authorize the execution of an instrument which was not a commercial note. The only departure claimed was that the agent signed his principal’s name to a paper in all respects a promissory note, except it contained a clause for the payment of attorney’s fees if placed in an attorney’s hands for collection, and the court held that this provision destroyed its character as a promissory note, and that as against the principal it was void. This case would seem to the writer to be an extreme case, but it illustrates to what extent and how jealously courts scrutinize the acts of agents done in excess of their authority. So in Dozier v. Freeman, 47 Miss. 647, it was held that where one person deals with another knowing that the other is acting under a delegated authority, it is his own folly if he does not inform himself of the extent of the delegated authority. In such case, the principal is bound only to the extent of that authority. And the Eq. L. Assur. Soc. v. Poe, 53 Md. 28, is to the same effect. So also in Pollock v. Cohen, 32 Ohio St. 514, it was held where authority to perform a specified act in specified modes is conferred upon an agent by a regularly executed power of attorney, and general words are also used, the general words are limited by and to be construed with reference to the modes specifically named. And an able elementary writer says on this subject: “It results from the rules of interpretation applied to the construction of powers of attorney that where authority is given to perform specific acts, and general terms are also employed, the latter are limited to the particular acts authorized by the power.” (Devlin on Deeds, 359.) These principles are declared and illustrated by other cases. (North River Bank v. Aymar, 3 Hill, 262; Wanless v. McCandless, 38 Iowa, 20; Tappan v. Morseman, 18 Iowa, 499; Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; Rossiter v. Rossiter, 8 Wend. 495, 24 Am. Dec. 62; Billings v. Morrow, 7 Cal. 171, 68 Am. Dec. 235; Rountree v. Denson, 59 Wis. 522; Story on Agency, § 72; Wharton on Agency, § 227.)

The authorities cited conclusively settle in what light a power of attorney is to be viewed and how construed, and it only remains to ascertain in what manner Mrs. Palmer proceeded in the execution of the power conferred upon her. On the 22d day of November, 1888, she proceeded, assuming to act under this power of attorney, to execute to her brother W. G. Jenne a deed in the name of Howard II. Palmer and herself, whereby, for the consideration of one dollar, and “the further consideration that the said W. G. Jenne hereby assumes the responsibility of providing a suitable and comfortable home for, and properly clothing Nellie Palmer, the daughter of said Howard H. Palmer and R. A. Palmer, until the said Nellie Palmer (now nearly three years of age) shall reach the age of eighteen years,” did thereby grant, bargain, sell and convey to said W. G. Jenne forever the real estate in controversy. Was this a sale? It is said in Frink v. Roe, 70 Cal. 296, that an agent authorized to sell and convey the property of his principal cannot as against the principal convey it in trust for the payment of his own debts to one who has notice of the terms of his agency. It was said in Williamson v. Berry, 8 How. 544: “Sale is a word of precise legal import, both at law and in equity. It means at all times a contract between parties to give and pass rights of property for money which the buyer pays or promises to pay to the seller for the thing bought and sold.” And it was said in Mora, Bishop of Monterey v. Murphy, 83 Cal. 12, “a power to sell and convey is prima fade a power to sell for money, usually for cash paid,” and it is further said, “to give it any other meaning, it must be by some usage or custom in the country where the power is to to be exercised modifying the prima fade significance of the power conferred.” So in Benjamin on Sales, § 1, which defines the requisites of a sale, “that it may be defined to be the transfer of the absolute or general property in a thing, for a price in money,” and in section 2 it is observed in considering the price, “that it must be in money paid or promised accordingly as the agreement may be for cash or credit sale; but if any other consideration than money be given, it is not a sale.” The principle is announced in Huthmacher v. Harris’ Admr. 38 Pa. St. 491, 80 Am. Dec. 502; Bigley v. Risher, 63 Pa. St. 152; Tiedeman on Sales, § 1. Under no definition of the word “sale” that I have been able to find, or any authority relating to the subject of sales, can this attempted transfer of Palmer’s property be called a sale. By this attempted transfer of the land in controversy by Mrs. Palmer to her brother, she sought to make provision for the support of the infant child of herself and husband, and that was all. Whether such a stipulation as the one in the deed to Jenne created an obligation that might be enforced if properly authorized, it is not now necessary to consider or decide. Let it be conceded that it was enforceable against Jenne, had Palmer elected to do so, it was in no sense a sale, but at most only an executory agreement so far as the consideration was concerned. The performance of Jenne’s agreement was in no manner secured. He might become insolvent, remove from the state, or simply refuse to care for and support Nellie, leaving Palmer’s rights altogether uncertain and precarious.

But it was claimed on the argument here that under the pleadings in this case it was competent to aid this deed and the power under which it was executed in some way by parol evidence, and accordingly a large amount of such evidence was offered. It must be observed that no mistake or imperfection in the writings was put in issue by the pleadings. It is difficult to see on just what ground this parol evidence is offered. There is no latent ambiguity in these writings, and the court can have no difficulty in construing them and determining just what their legal import is. But if it be conceded that parol evidence is admissible when there is no uncertainty in the writings, simply for the purpose of showing the situation of the parties and their relations to each other as well as the property in controversy, it is not perceived how it could aid the respondent’s contention. The fact is undisputed that the mother of Mrs. Palmer once owned this property and deeded it to Palmer, the husband of P. A. Palmer. It likewise fully appears that she said at the time, her daughter R. A. Palmer was not to have it.

This deed to Howard H. Palmer gave him as absolute an estate in this land as if he had purchased it from some person outside of the family and paid full value for it. There is no attempt by the pleadings to assert any equity in Mrs. Palmer at the time her mother made this deed, and if set up it is not perceived on what ground it could be sustained. But this parol evidence was designed in some way to enlarge the powers of the agent beyond what was specified in the writing, and it is believed this cannot properly be permitted. In Hartford Fire Ins. Co. v. Wilcox, 57 Ill. 180, it was held that it was a general rule that where an agency was conferred by a written instrument, the nature and extent of the authority must be ascertained from the instrument itself, and cannot be enlarged by parol evidence of the usage of other agents in like cases, or of an intention to confer additional powers, because that would be to contradict or vary the terms of the written instrument. The same case states for what purpose and to what extent parol evidence may be resorted to, and it is remarked that the usage of a particular trade or business or of a particular class of agents are properly admissible, not for the purpose of enlarging the powers of the agent employed therein, but for the purpose of interpreting those powers actually given; for the means ordinarily used to execute the authority are included in the power and may be resorted to by all agents and especially commercial agents.

It was argued here that the defendant is a bona fide purchaser, and therefore its title could not be disturbed. It is not perceived in the present condition of this record that the question of good faith enters into the case. The very defect complained of constitutes an essential part of the defendant’s title, and it must be held to be chargeable with notice of the state of its own title and of every fact appearing in any of the deeds or writings through which it deraigns title. (Wade on Notice, § 307.)

These conclusions require a reversal of the judgment and that the cause be remanded for a new trial. The same judgment will be entered in Coulter v. Bash and in Coulter v. Warner, submitted at the same time. These cases all depend upon identically the same principle, and the same judgment will be entered in each.

[Riled July 8, 1891.]

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Rehearing

On petition for rehearing.

Strahan, C. J.

— Counsel for appellant have filed an application in the nature of a petition for rehearing as to that part of the judgment directing a new trial, on the ground that the findings of fact in the record entitle them to a direction from this court that final judgment be entered in favor of the appellant on the findings of fact. That question is an important one in practice, but it was not made by the appellant upon the argument, nor suggested until after the entry of judgment here. The respondent, therefore, had no convenient opportunity to consider or answer ih No doubt in most cases tried by the court without a jury, where the court errs in its conclusions of law, and the judgment is reversed for that reason, the better practice is for this court to correct the findings of law and direct what judgment shall be entered; but in such case the appellant ought to insist on that mode of procedure at the argument, when the whole question can be considered, and not wait till a new trial is awarded and then suggest the question for the first time.

A new trial can result in no injury to either party, and, under the circumstances of this case, the application for rehearing will be denied.

In the cases of Coulter v. Rash, and Coulter v. Warner, the same question is presented, and the like order will be entered.