34 Wash. 463 | Wash. | 1904
On the 2d day of May, 1901, one S. M, Bruce, claiming authority to act under power of attorney from one H. St. John, principal defendant in this action (who was the owner of a bank situated in Whatcom county, Washington, known as the Bank of Blaine, and was also the owner of stock and interests in various other banks in the state of Washington), executed and delivered to G. H. Westcott, garnishee and respondent herein, a bill of sale of the safe, fixtures, stationery, and books of said bank. On the same day, and as part and parcel of the same transaction, said Westcott executed a declaration of trust, by which he agreed to dispose of the property above mentioned for the benefit of the creditors of the Bank of Blaine. In
Before the case came on for trial, appellant made demand for a copy of the bill of sale, which said copy was furnished, and disclosed that it had been executed by S. M. Bruce, attorney in fact for H. St. John. Bruce testified that he had executed, and delivered to Westcott, the instrument under discussion, which is exhibit “A” in this case, and received from Westcott the declaration of trust, which is exhibit “C.” Mr. Bruce was then permitted, over the objection of appellant, to testify that he had received a cablegram from London, from BE. St. John, in cipher, which interpreted read: “Take charge and make best settlement for creditors possible.”
The court found that St. John, through his authorized agent and attorney in fact, S. M. Bruce, sold, assigned, and transferred unto said garnishee defendant, G. H. Westcott, those certain bank fixtures situate in and belonging to the Bank of Blaine, of which said bank the said H. St. John was proprietor, the property in controversy here being the safe, furniture, fixtures, etc., of the Bank of Blaine; that Bruce had authority to so dispose of said property, and that the property had passed from the possession of the defendant St. John; that, by reason of the premises, said sum of $400.60 was held in trust by said garnishee defendant for the use and benefit of the creditors of said Bank of Blaine ; and that no part of said sum belonged to the defendant H. St. John, or to any person other than said
The power of attorney, on which the defense in this case rests, is as follows:
“This Indenture Witnesseth: That H. St. John, hereinafter called the first party, has made and does hereby make, constitute and appoint S. M. Bruce, of Whatcom county, Washington, hereinafter called the second party, his true and lawful attorney in fact, to do and perform each and all and singular the following acts and things: The first party does hereby empower the second party in the name, place and stead of the first party, to take charge of all property, credits and effects belonging to the first party, or in which the first party has any interest, situated in the state of Washington, and especially in the county of Whatcom, and especially those properties known as the Bank of Blaine, the Citizens’ National Bank of Bairhaven, and the Scandinavian-American Bank of New Whatcom, all in Whatcom county, Washington, and to direct the policies of said properties, and to attend any meeting or meetings of stockholders of said property that may be called or held in the absence of the first party from the said county, and to vote said stock at any meeting of stockholders in the name and stead of the first party as fully and to the like purpose as if the first party were present and acting in person, and the second party is hereby further empowered to negotiate and sell said stocks as security*467 for any loan or advance which, the second party may he able to obtain on said stocks and securities, or any part or number of them, the said second party being hereby fully empowered to negotiate loans, and to execute and sign evidences of indebtedness for the purpose of raising money upon said stocks or properties as fully and to the like purpose as if the first party were present and .acted in person; and the said second party is also empowered to give receipts, collect money, and to do generally all things incident to the business and business interests of the first party, the first party hereby confirming and ratifying all and singular every act or thing done by the second party under the powers here granted, whether the power to so act has been explicitly set forth or not, if the same is found to be convenient or advisable within the discretion of the second party, full authority being hereby given the second party to hypothecate, assign and transfer in the name of the first party any and all of the securities, stocks or property above set forth; and whatsoever act or thing the second party may do under the powers aforesaid, or in the exercise of any discretion or incidental act necessary to the carrying out of said powers, the first party will and does hereby ratify and confirm irrevocably and unconditionally.”'
This instrument was duly signed and acknowledged by H. St. John. It is earnestly contended by the appellant that no authority was conferred upon Bruce to dispose of the furniture of the bank for the benefit of creditors, ox at all. The argument is that it was only the stock or securities which he was empowered, in any event, to dispose of; that under the law all powers of attorney receive a strict interpretation, and that the authority is never extended by intendment or construction beyond that which is given in terms, or is absolutely necessary for carrying the authority into effect, and that authority must be strictly pursued. This power of attorney is so definite and explicit that it is difficult to discuss it, and, conceding the rule con
It is also insisted by the appellant that the court erred in admitting the testimony of Mr. Bruce, in relation to the additional instruction he received from defendant St. John by cablegram, to the effect that he should take charge and make the best settlement for creditors possible. As we have often said, the admission of immaterial testimony in the lower court, where the case is tried de novo in this court, would not authorize a reversal of the judgment, but this court will disregard the testimony, if it finds it immaterial, and try the cause on the testimony which is properly introduced. Although, in our judgment, there was no technical error in admitting this testimony; its effect was not to vary the terms of the written authority; it only tended to explain the written instrument, if any explanation Was necessary, and oral testimony in such cases is permissible for the purpose of explaining or expanding the written authority.
We do not conclude, from an investigation of the record, that the court abused its discretion in refusing to grant a new trial on the ground of newly discovered evidence, or on any other ground. The judgment is affirmed.
Fullerton, C. J., and Mount and Anders, JJ., concur.