66 Me. 459 | Me. | 1876
The first question presented by the exceptions in this case is whether the instrument declared upon is the deed of the defendant. The only objection raised is a want of execution. There is no dispute about the facts upon this point. There are many signatures to the paper as parties all of which, including that of the defendant, were written by one person. Then follows the word “by” with the genuine signatures of nine persons, and the words “their attorneys.” Among these nine is the name of the defendant. The objection is that the only signature of the defendant, attached to the paper, which is genuine was put there as attorney only and that which is put there as a party was without authority. It is conceded that the name first put to the deed was put there by a person having no authority to make the paper a
But it is said that knowledge is a necessary element of ratification, and that therefore he could not ratify the unauthorized act of the party who put his name there. This may be true, but strictly speaking, here is no question of ratification, nor so far as appears, any unauthorized act to ratify. True, he says he did not authorize his name to be put there. He was, however, one of a com
It is however contended that the attorneys had no sufficient authority to bind the defendant to such a contract, and that, as far as they did or could bind him, the covenant has been fully executed.
The case shows the failure in business of one J. W. Jones, having a large number of creditors. A portion of these creditors selected the committee of nine spoken of, and authorized them by a written power of attorney to make such settlement or disposition of their claims as in their judgment plight seem proper. The power of attorney recites, that “we, the undersigned, . . . creditors of John Winslow Jones, for the amounts set against our respective names, do hereby make, constitute and appoint, (naming the nine persons who executed the covenant in question,) our true, lawful and sufficient attorneys, with full power ... to sell, assign and transfer, and according to their best judgment, finally adjust, or otherwise dispose of our said claims,” &c. The defendant was one of the attorneys named, and signed t.he power with the words and figures, “to amount of $101.64,” against his name.
It is contended that as the defendant’s claim in the power of attorney was limited to the sum of $101.64, and as that was the amount of Millett’s claim, a fair construction of the two papers will show that the defendant in this transaction was acting for Millett alone, and that debt having been settled in accordance with the covenant, no further liability rests upon him in relation to the other two demands ; in other words, the covenant covered the Millett demand alone. But in this construction we meet with some insurmountable difficulties. The two papers, as the defendant testifies, may have been executed at the same time; but we cannot consider them as a part of the same transaction in such a sense as to require them to bo construed as one instrument. They are in furtherance of the same final purpose ; but the first is only a step in reaching the end, while the second is the end itself. The deed contains all there is of the contract and is free from any ambiguity. It must therefore be interpreted by its own terms alone. The deed makes no reference to the power for any limitations or explanations, and besides the two are not made by the same parties. As the attorneys have signed as such, we may inquire into the extent of their authority to make such a contract; but for its meaning we must be confined to the writing in which it is set out. The contract is one thing, the authority or want of authority is another and entirely different thing.
We come then to the question as to the authority of the attorneys to make the contract they did. So far as the attorneys and principals are not the same persons, the written power must settle that question.
When, however, as in case of this defendant, the principal and
Independent of this, it is by no means certain that the power did not authorize the attorneys to make the contract which they did.
The defendant describes himself as a creditor to a certain 'amount, giving no indication that such' is not the full amount, then gives his attorneys power to settle not that amount but his debt. In pursuance of that power they assign his debt without limiting the amount. Does not such an assignment carry the debt ? If they had assigned or discharged it for the percentage due on the amount given, he would undoubtedly have been estopped from claiming more of the attorneys, and for aught we see, of the debt- or in the absence of fraud or mutual mistake, but in the case of sale we see no reason why the purchaser might not claim the whole amount due. But a decision of this point is not necessary.
The result is that the instrument declared upon is the deed of the defendant and he is bound thereby according to its terms.
It is claimed further that the deed is not admissible because
An objection, suggested to the maintenance of the action, is that no sufficient tender was made. It is true that as a condition precedent to any liability or obligation on the part of 1he defendant there was “to be paid or tendered to him within sixty days, a sum equal to ten per cent thereof, on first receiving a sum which witli payments already made shall equal fifty per centum of the original indebtedness, said fifty per centum or the balance thereof to be paid one-half cash and one-half in negotiable indorsed paper . .
the said ten per centum to be computed on said balance remaining due after said fifty per centum has been paid.” It will be noticed that the payment in notes applied only to the fifty per cent, and not to the ten per cent. If, therefore, the first half of the indebtedness was paid and received by the creditor there was no occasion to make any tender of a note; it only remained to tender the ten per cent on the balance which was to be in cash as no other way was provided for its payment. N ow, whatever may have been the defendant’s claim; the first half had been paid and received before the commencement of the action. That part which was due to Millett had been settled in full by the agreement of parties. The half due to Learned and more than half due to himself, or Trull and Hamlin, as the case may be, had been paid before even the agreement was made. These in any view covered all his claims; and, therefore, in this action no question can arise as to the payment or tender of the first half. It was claimed that the ten per cent liad been tendered, and testimony offered, which we think would have authorized a jury to have so found. But whether so or not, the defendant, by his refusal to receive any sum less than the whole amount after the Millett demand was paid and denying that the balance of the draft or any part of it was included in the covenant, waived such tender as should otherwise have been made. Hazard v. Loring, 10 Cush. 267.