17 Conn. 487 | Conn. | 1846
The question reserved for our advice, in this case, is, whether the power of attorney given by the defendant, authorized the execution of the bond upon which the suit is brought.
The terms of the power are sufficiently broad and comprehensive for that purpose. The language is, “ and also for me and in my name and behalf, to make, execute, seal, and deliver any and all such bonds and deeds, as he shall judge expedient.” The authority to execute bonds, is, therefore, given in express terms. The attorney had power to execute all such as he should judge expedient.
But it is said, that general language, used in connexion with a particular subject matter, will be presumed to be used in subordination to that matter ; and is, therefore, to be construed and limited accordingly. Attwood & al. v. Munnings, 7 B. & C. 278. (14 E. C. L. 42.) This is undoubtedly true. What then is the subject matter of the power 1 It is, says the defendant, simply to collect the debts due to him, and dispose of his property ; that this bond was not given for either of those purposes, and is not, therefore, within the scope of the authority conferred.
This limitation of the subject matter of the power, is certainly very narrow and contracted, and we think not in accordance with the language of the instrument.
The case shows, that the defendant was the surviving partner of a firm in this country, and had gone off to Texas, then a foreign state, leaving the affairs of that company unsettled. Under these circumstances, the power is given. It authorizes the attorney to collect and settle all the debts and demands due the principal, either severally or jointly with others, and to use any and all such lawful ways and means for the recovery thereof, as he might deem expedient. And after giving him power to execute bonds and deeds, and to sell and convey all his real and personal estate within the United States, he finally empowers him to do and transact any and all other lawful business, matters and things, within the United Slates, which the principal could do, were he personally present.
The collection of the debts due to the defendant, and the sale of his property, were undoubtedly the primary objects of the power conferred. But to confine the operation, exclu
To say that his design was to collect all the debts due him, dispose of all his property, and get all the avails into his possession, and leave his creditors to follow him into a foreign country, and collect their debts of him as they could, would be imputing to him a fraudulent design. Such a construction ought not to be given to his deed, unless required in unequivocal terms.
The bond in question was given to a creditor of the late firm to which the defendant belonged, residing in this state. It was the duty of the defendant to pay the debt. Had he or his attorney refused, the creditor might, under our laws, have instituted a suit against him, and attached all his property in this state, all debts due to him, and the moneys, if any, in the hands of the attorney. This would at once have arrested the collection of debts and the sale of property. Unless the attorney possessed the power of settling or securing the debt, in the absence of the principal in a foreign country, the defendant might suffer much injury from the expenses of the suit and the delay attending it. He might, therefore, have deemed it for his interest to clothe his agent with all necessary powers for the speedy and economical management of his business.
If the power does not confer authority to execute a bond like the one in the present case, it will be very difficult to say what is meant by the clause authorizing the attorney to execute “all such bonds as he may deem expedient.” He was empowered to sell real and personal property, and we can readily understand why he should need authority to execute deeds. But if he had only authority to collect debts and sell property, why authorize him to give bonds 1 Such instruments are not usually required in either case.
We think the instrument is entitled to a reasonable and just construction. The design was to enable the attorney to settle the copartnership business of the firm; to adjust the debts due from the company, as well as those in their favour. Where a balance was ascertained to be due from the company to a creditor, it was not the duty of the attorney to say to the creditor, I have nothing to do with this claim; the settlement of it is not within the scope of my authority. He might deem
Now, as it is agreed that the bond in question was given for a just debt of the firm, which it was the duty of the defendant to pay, in our opinion, the attorney, in executing it, acted both within the letter and the spirit of the power of attorney given him by the defendant.
Judgment for plaintiff.
