McLamore v. Heffner

33 Tex. 514 | Tex. | 1870

Lindsay, J.

The action in this case was- instituted for the recovery of unlocated certificates for land; which certificates had been delivered by the- testator of the plaintiff in error to the intestate of the defendant in error under a written contract, that the bailee of the certificates was to locate the land, paying all expenses, and to receive for such services a stipulated portion of the land, when they were so located. A portion of the land called for in one of the certificates was located by the bailee in his life time. Nothing was done in locating the residue of this certificate, nor was any location made of the others; and upon the death of the bailee, the certificates came to the hands of his administrator, of whom they were demanded, and against whom this suit was instituted for their recovery.

The administrator claimed the right of performing the contract entered into by his intestate in his life time, to locate the lands for him, and to appropriate the indemnity stipulated in the agreement. Upon the trial of the cause, his right to do so was admitted by the court, and so given in charge to the jury. This was error for which the judgment must be reversed, anda new trial awarded.

This delivery of the certificates and contract for the location of the land were a bailment and an agency, which necessarily ceased, and were revoked by operation of law, upon the death of the agent and mandatory. The administrator, or personal representative of the agent, had no authority to fulfill and perform the contract, unless with the express consent of the mandator and principal of the deceased agent. This consent was not given; since the testimony “showed, that upon the death of the agent the unlocated certificates were demanded of the administrator, which he refused to surrender. By the death of the agent, it became practically impossible for the completion of the agency; and the law, presuming that the confidence and trust were reposed in the personal character and skill of the agent, will not extend the agency to the personal representative. If the administrator, therefore, attempted, or did actually make the location, in defiance of the remonstrance and' protest of the owner of the certificates, he did it in his own wrong, and can claim no benefit or remuneration for such action, either for himself or for the estate of which he was the representative.

So far. as the contract for location had been carried out by the intestate in his lifetime, the administrator has the equitable right to enforce its stipulations, but no farther. His intestate is entitled to a loeative' interest, under his contract, in. the tract of land which was located in his lifetime. And he might he entitled, under a proper state of pleading, to a credit for the value of the mule which he received from the intestate. But he can claim no interest in the nnloeated certificates, or in any lands which may have been located under them since the death of the intestate.

The judgment of the court below is reversed and remanded, and the cause ordered to be retried, in accordance with the principles of this opinion.

Reversed and remanded.