Goodale v. Wheeler

| Superior Court of New Hampshire | Dec 15, 1840

Gilchrist, J.

It appears from the facts in this case, that the defendants, having authority to sell the right of the town in the meeting-house, by auction, had two objects in-view, in adopting the course which they pursued in the discharge of their duty. The first was, to act according to the authority with which they were invested by the vote of the town. The second was, to prescribe such conditions, in addition to those required by the vote of the town, as would make it for the interest of the purchaser to complete the contract, and would indemnify the town for such expenses as might be incurred, if the purchaser should recede from his bargain, and thereby render another sale necessary. Their advertisements, therefore, contained the terms of sale prescribed by the votes of the town, and a further condition prescribed by themselves, that the purchaser should make a deposit of twenty dollars, which was to be forfeited if he did not furnish the required security, and comply with the terms of the sale.

The right of the parties in this case may be considered in two views. First, upon the position that the defendants had, and secondly, that they had not, a right to require a deposit of twenty dollars.

Had they a right to require such deposit ? They were the agents of the town, to sell the property of their principal, with certain instructions for their guidance. Of course, it was their duty to follow those instructions.

The general power possessed by an agent in the prosecution of his peculiar duties, seems to be well ascertained and settled. It is said that an authority is to be so construed, as to include all necessary or usual means of executing it with effect. Paley on Agency, 189; Howard vs. Baillie, 2 H. Bl. 620.

And a power to do any act, comprises a power to do all such subordinate acts as axe usually incident to, or are necessary to effectuate the principal act in the best and most convenient manner. Paley on Agency, 209; Richardson vs. Anderson, 1 Camp. 43, n.

A general authority to an agent to contract for grain, reasonably implies a power to modify or cancel contracts which might be made by him: for this power is essential to enable the agent to protect the interests of the principal; otherwise he is circumscribed in the exercise of his discretion, when it might be most essential in the course of the execution of his powers. Anderson vs. Coonley, 21 Wend. 279.

It is a general maxim, that an authority to accomplish a definite end, carries with it an authority, so far as the constituent can confer it, to execute the usual, legal and appropriate measures proper to accomplish the object proposed. Valentine vs. Piper, 22 Pick. 92.

The duty of the defendants, in selling the property, was to follow the instructions of the town, so far as they went. And, consistently with the principles above referred to, they might adopt such further regulations as to the sale, and prescribe such further conditions, as would best carry into effect the object of the town. Of course they could do nothing inconsistent with their prescribed duty, or with the votes of the town. If they considered it necessary, in order to effect the sale in the best manner, that certain other conditions should be imposed, which did not conflict with the purposes for which they were appointed, there seems to be no reason why they should not impose them. Their discretionary power extended, however, only to a choice of such modes as would carry out their object. They had no authority to act in contravention of the intent of the town. There is nothing in the votes inconsistent with the exercise of such a power, and the condition prescribed by the defendants seems to be a very sensible and appropriate one. If a person were disposed to prevent a sale, he might bid a sum so large as to he altogether disproportioned to the value of the property, and then refuse to complete the contract. Under the vote of the town, there would be nothing to ensure his compliance, for he would forfeit nothing by his refusal. It is evident that a number of persons, by uniting their efforts, might thus protract the sale indefinitely ; and some such disposition existed, if we may judge of the price which the property sold for, compared with the sum of $5000-00, bid by Whiting. Or, as the pew owners were allowed ten days within which to determine whether they would sell, another bidder might think he could bid with safety, as, if there were a prospect of his being obliged to purchase more pews than he thought it for his interest to own, he would still have twenty days after the expiration of the period of ten days, in which to notify the defendants that he should not complete the contract. The condition prescribed by the defendants, requiring a deposit of money, was well calculated to avoid these inconveniences, and to ensure a sale, and we consider it to be clearly within their general powers as agents. And as the plaintiff did not comply with the condition, he has now no right of action.

There is another view of the case, which leads us to the same result. Let it be admitted that it was not within the general powers of the defendants to impose this condition. In such case,what wrong has the plaintiff sustained by the act of the defendants ? His position is, that it was their duty, as agents of the town, to convey the property to him, and that for such refusal to perform their duty they are answerable to him. The answer to this is, that their refusal to convey was a nonfeasance, for which they are liable, not to him, but to their employers. Paley on Agency, 396.

If they had refused to convey, so that the town lost the opportunity of selling the property, the town would have a remedy against them by action. But here, they have violated no duty to the plaintiff, for he has acquired no rights against them. If he had complied with their condition, and had deposited the money, a refusal by them to convey would give him a right of action, for their non-performance. But he now seeks to recover of them, on the ground that he has a right of action, as against them, when he admits that he has not complied with their condition. It does not appear that the town have complained of their conduct; and as they are satisfied with the acts of their agents, no other person has any right of action.

Judgment on the verdict.