Piercy v. Hedrick

2 W. Va. 458 | W. Va. | 1868

Maxwell, J.

This was an action of debt in the circuit court of Greenbrier county in the name of Henry Hedrick’s use, &c., to recover from George Piercy, executor of the last will and testament of Jolm.Piercy, Sr., deceased, the sum of 100 dollars with interest, the amount of a promissory note which the declaration charges was made by the said John Piercy, deceased, and one Andrew Piercy, in the lifetime of the said John Piercy, deceased. The pleadings were a plea of payment, nil debit and a plea denying the execution of the note bj* the said John Piercy in his life-time, the last named plea being verified by the affidavit of the defendant, on which pleas issues were joined. On the trial neither party requiring a jury the case was submitted to the court which rendered a judgment in favor of the plaintiff below for the amount claimed. The defendant thereupon asked the court to grant, him a new trial, but the court refused to do so, whereupon the defendant asked the court to certify the facts proved on the trial, which it accordingly did as follows: The plaintiff introduced one John Piercy as a witness, who being sworn, proved the following facts, to-wit: “That his father, the testator of the defendant, had told him to go and settle a certain controversy and sign, the names of Andrew Piercy and the said John Piercy, the testator, to bonds to be given for the settlement of said controversy; that his father. John Piercy, was not present when the names were signed, and never, so far as he knew, saw the writing sued on; that the writing, body and signatures, was wholly in the hand writing of witness, and was in these words and figures following:

Too years after dat we or either of us promise and oblitj ourselve to pay Henry Hedrick one hunderd dollars for value redd'd. G-uiven under our hand this 26th day of Febuary, 1857.

Signed, Andrew Pieroy, [seal.]

John Pieroy, Si’., [seal.]

By John Pieroy, Jr.

That four notes were given at the same time the one sued on was given, whereof the one sued on was one; that each of said notes was for 100 dollars; that one of the notes fell due in his father’s life-time; that his father gave him (witness) the money to go and pay said note, and that he did so accordingly; that witness had no authority from Andrew Piercy to sign his name to said note, and these being all the facts in the cause, and the court being of opinion that the witness, John Piercy, who appears to have acted merely as the agent of his father, was a competent witness, and that as the writing on which this suit was brought being a promissory note under seal, a parol authority was sufficient to authorize him to bind his principal, gave judgment for the plaintiff.”

The plaintiff here claims that the court below erred in allowing the witness, John Piercy, Jr., to testify, because he was interested and incompetent. I think the witness was not interested in the result of the suit; he could not be held personally liable in the note for the amount of it, because he was acting for and in the name of another, as his agent, whose name was made known to Hedrick at the time, the note was executed as appears from the note itself. 3 Rob. Prac., new, page 56; 1 Tucker’s Com., 88, 89, and authorities there cited. The plaiutiff here also claims that the authority of the agent should have been in writing, and that the witness could, not prove his own authority. I think it well settled that an agent is a competent witness to prove his own authority when it is by parol. 1 Green. Ev., sec. 417, and authorities there cited, and Gould vs. Norfolk Lead Co., 9 Cush., 342. The plaintiff here further claims that though it may have been competent for the witness to prove his agency, yet that the agency proved was to “ settle a certain controversy, and sign the names of Andrew Piercy and the said John Piercy. the testator, to bonds to be given for the settlement of said controversy,” and that an agency to execute bonds cannot be created by parol. What the character of the controversy to be settled was does not appear from the bill of exceptions. It must be supposed, however, as the contrary does not appear, that an agent could properly be appointed by parol to settle it; the primary object of the appointment of the agent was to settle the controversy, and the secondary or incidental object was to provide for the payment of the amount found due or agreed upon to b.o paid. The promissory note sued on was executed together with other notes in settlement of the controversy, and I think clearly within the authority of the agent. The authority to accomplish a definite end carries with it the power to adopt the usual legal means to accomplish the object. Chitty on contracts, edition of 1860, page 236. Anderson vs. Conley, 21 Wend., 279. The promise to pay money is as usually and as appropriately evidenced by promissory note as in any other manner.

I think the judgment ought to be affirmed with damages and costs against the plaintiff' in error.

The President concurred.

Judgment arrirmed.