143 Ark. 143 | Ark. | 1920
Lead Opinion
(after stating the facts). The issue raised by the appeal is whether or not there is any evidence of a substantial character to support the finding of the court that the bank at Monticello was authorized by appellant to collect the blue note of Allen and that payment was in fact made by Allen to it.
Conley was a witness for appellant. According to his testimony, the blue note was payable at the Bank of Commerce, Little Eock, Arkansas. He had nothing to do with the collection of the blue notes other than putting them into the bank where they were payable; but he could accept payment when they were payable in Little Eock and withdraw the notes from the bank. Conley was a director of agencies for Arkansas, and Blitz was the cashier in his office. It is apparent from Conley’s testimony that he put the blue notes in the bank in Little Eock for collection and that a policy holder could come to his office and pay them. Conley was then authorized to withdraw the note from the bank which held it for collection. Therefore Allen could have gone to Conley’s office and have paid the blue note to Conley or to Blitz, the cashier of his office. If Conley had the authority to collect the note at his own office, he at least had the apparent authority to direct the bank at Monticello to collect the note for him. The gist of the matter is that Conley had authority to collect the note, and this carried with it the authority to collect it through an agent.
This brings us to a consideration of the question of whether or not Conley gave .the bank at Monticello authority to collect the note. The appointment or authority of an agent is a question of fact. What the agent may do by virtue thereof is a question of law.,. If the bank at Monticello had the authority to collect the notes, it was conferred by the two letters written to its cashier by the cashier of Conley.
It is the contention of appellant that these letters must be read together and must receive the same strict construction as is ordinarily given a formal power of attorney. This is not the rule.
In Craighead v. Peterson, 72 N. Y. 279, in discussing the question, Judge Allen said: “A formal instrument delegating powers is ordinarily subjected to strict interpretation, and the authority is not extended beyond that which is given in terms, or which is necessary to carry into effect that which is expressly given. They are not subject to that liberal interpretation which is given to less formal instruments, as letters of instruction, etc., in commercial transactions, which are interpreted most strongly against the writer, especially when they are susceptible to two interpretations, and the agent has acted in good faith upon one of such interpretations.”
What was said by the learned judge in that case has been quoted with approval by the leading authorities on the law of agency. Mechem on Agency (2 ed.), vol. 1, par. 784, p. 558, and Clark & Skyles on the Law of Agency, vol. 1, par. 213, p. 515. The last mentioned authors on pages 516 and 517 say: “In construing such an authority, the court must always keep in mind the purpose or object for which the authority was created. The guiding principle in the construction of powers is to be derived from a consideration of the result which the agent or depository of power is appointed to accomplish. When a court is called upon to construe a written authority, its first duty is to ascertain what intention or purpose the principal had in view when he gave the authority to the agent; and when that has been ascertained, the power is to be construed so as to effect that purpose, if possible, instead of defeating it. In conformity with such purpose or intent a general power may be limited, or a limited power made general. As has been said: 'All powers conferred must be .construed with a view to the design and object of them, and the means most nsnal and proper for carrying their design and object into effect, due consideration being given to the language used.’ ”
While it is a familar rule that parol evidence cannot be admitted for the purpose of varying or contradicting a written instrument, in doubtful cases resort to it can be had to show the situation, surroundings, and relations of the parties. Tested by this rule the letters are to be more liberally construed than a formal letter of attorney, in order to effectuate and carry out the intention of the parties.
The record shows that Allen was a man of considerable means and influence in his community. He was in apparent good health and was considered a desirable risk by the company. It was interested in keeping him as one of its policy holders. The letter written on the 13th day of October, 1917, told the cashier that the policy would lapse if the note was not paid on or before the date on which it became due. The cashier was requested to see that the check was mailed to Conley’s office in ■time to prevent the policy from lapsing. This letter, of course, was not sufficient of itself to appoint the cashier of the bank as agent of Conley to collect the note. Conley’s cashier, however, on the 19th day of October, 1917, again wrote to the cashier of the bank at Monticello as follows: “Kindly do not overlook the note due on Mr. Joe Allen’s policy as this will be due the 20th, the day you receive this letter.” It will be observed that Conley’s office knew that the letter would not be received until the 20th, the day Allen’s note was due, and that payment could not be possibly received at its office in due course of mail. No suggestion or direction is made about getting the money to Conley upon the day of the 20th. No suggestion is made that the policy will lapse if that was not done. Allen had already told the cashier to pay the note and charge his account with the amount. He had money to his personal credit in the bank more than sufficient to discharge his indebtedness to the insuranee company. This direction to the cashier was sufficient, we think, to show a payment to the cashier if he had authority to receive it.
It is true that an effort was made to telegraph the money into Little Rock so that it could be paid into the bank which had the note in its possession, but this might have been considered by the trial court, under the 'circumstances, as an additional effort to see that the bank which held the note got the money in order to obviate any possible dispute about the matter in the future.
Giving all the evidence the effect to which it is legally entitled and viewing the letter of October 19, 1917, in its most favorable light to appellee, a majority of the court is of the opinion that the finding of the trial court that the bank at Monticello was authorized to receive payment of the blue note of Allen was justified.
It follows that the judgment should be affirmed.
Dissenting Opinion
(dissenting). Neither the letter
of October 13th, nor the one of October 17th, nor both of them combined, contained the semblance of authority for the bank at Monticello to assume to act as agent of the insurance company. On the contrary, the first letter shows on its face that the writer was treating with one who was supposed to be acting for the policy-holder. The Monticello bank did not, according to the uncontradicted testimony, treat the letter as conferring authority as agent of the insurance company, and the bank made no representation to Allen that it assumed to act for the company. Allen himself had no doubt on the subject, for he dealt with the bank as his own agent. The sole concern of Allen and the bank’s cashier on the morning of October 20th, was to find means of getting the iponey to Little Rock on that day and having it paid over to the company’s agent so as to prevent a forfeiture of the policy. They employed ordinary business methods in doing so, but their efforts were made through agencies of their own selection and the consequences of failure fell on the policy-holder, and not on the company, however disastrous they proved to be. The parties themselves made the contract, and it is not within the province of this court to change it to suit our own ideas of natural justice.
I am unable to discover any evidence on which the verdict can be sustained.
Rehearing
(on rehearing). Learned counsel for appellant have devoted a 'Considerable portion of their brief on rehearing to the citation of authorities from the Supreme Court of the United States, and other courts, to the effect that contracts may be formed by letters as well as by other witings, and that the interpretation of such contracts is a question for the court. If counsel mean to say that when the language used in such contracts is unambiguous they should be construed by the court, they but state an elementary proposition of law which needs no citation of authorities to support it. If, on the other hand, they mean to say that the construction of such contracts are for the court, regardless of whether the language used in making the contract is ambiguous, they run counter to our own decisions on the subject.
This principle was well stated in Massey v. Dixon, 81 Ark. 337, where the court said:
“If the written contract unequivocally manifests the intention of the parties, the court should declare its effect. But where, as in this case, it is not clear from the instrument, taken as a whole, as to whether the parties intended a present or future sale, the court properly submitted the question to the jury for determination.”
Again, in Jones v. Lewis, 89 Ark. 368, the court said that where the intention of the parties does not appear clearly from the written instrument, the question should be left to the jury for its determination. We had in mind this principle of law when we decided the case and reached the conclusion that the judgment should be affirmed on the theory that the letters were ambiguous and that when the.court, sitting as a jury, considered the ciroumstances surrounding the parties and the situation when the contract was -made, it was warranted in finding that the hank at Monticello was the agent of the insurance company for the purpose of collecting Allen’s premium. As pointed out in our original opinion, a formal power of attorney is ordinarily subject to a strict interpretation, and is not entitled to that liberal interpretation which is given to informal letters of instructions in commercial transactions. This holding is in accord with the decisions of our own court.
In Ford Hardwood Lbr. Co. v. Clement, 97 Ark. 522, the court said that where the interests of the parties to the contract conflict under a clause of doubtful purport, it should be construed most strongly against the party who prepared the contract. See also Gulf Compress Co. v. Harrington, 90 Ark. 256, and Wood v. Kelsey, 90 Ark. 272. The question of whether or not the contract under consideration should be declared unambiguous as a matter of law is an exceedingly close one; but after a careful consideration of the whole record we are of the opinion that its terms were ambiguous, and that the court sitting as a jury was warranted in finding for appellee.
It is next contended that there is no testimony whatever in the record tending to show that Allen paid the premium to the bank at Monticello, even if that.bank had the authority to collect the premium. The letter was received by the cashier. He showed it to Allen, and Allen directed him to charge his account with the amount of the premium note when it should be sent to the bank. At all times thereafter Allen had a much greater sum in the bank than was necessary to pay the premium note. After receiving the second letter, the cashier telegraphed to the German National Bank to pay the note to the cashier of the insurance company. If the bank at Monticello had authority to collect the premium note, it did so and was endeavoring to transfer the amount so collected to the Little Bock cashier of the Life Insurance Company. In short, if the bank at Monticello had the authority to collect the note it did so and forwarded the proceeds to its principal. The bank evidently did this as a matter of precaution in order to avoid the very situation which has now arisen.
The motion for rehearing will be denied.