54 Minn. 177 | Minn. | 1893
The defendants in the record, Johnston, Smith, Searle, and the two Bushnells, being the owners as tenants in common of certain lands, each of them, other than William M. Bushnell, executed a separate power of attorney to William M. Bushnell, (Exhibits A and C of the complaint.) William M. Bushnell, for himself, and as attorney for the other defendants, under these powers, sold some of the land, and took as security for the purchase money (as we infer) the promissory note described in the complaint, payable to the order of all five of the defendants jointly, and subsequently sold and transferred it to plaintiff with what purported to be a joint “indorsement” or “guaranty” of all the payees. This action is brought on this indorsement or guaranty. The defense is that it was not authorized by the power, because— First, it is a contract of guaranty of payment, and not of “indorsement;” second, the separate powers did not authorize the agent to bind either of the defendants jointly with the others; and, third, that the instrument was not a promissory note. The third ground has been decided adversely to defendants’ contention, at the present term, in Hastings v. Thompson, post, p. 184, (55 N. W. Rep. 968.) We do not find it necessary to consider the first, because, in our judgment, the second is decisive of the case. It is as fundamental as it is elementary in the law of agency that a formal instrument conferring authority will be construed strictly, and can be held to include only those powers which are expressly given, and those which are necessary and essential to carry into effect those which are expressed. While all these parties had an interest in the land,
Judgment reversed.