Reese v. Medlock

27 Tex. 120 | Tex. | 1863

Moore, J.

It is a well settled general principle, that, when an agency is created and conferred by a written instrument, the-nature and extent of the authority given by it must be ascertained from the instrument itself, and can not be enlarged by parol evidence of the usage of other agents in like cases, for that would be to contradict or vary the- terms of the written instrument. There may, however, be some qualifications and limitations properly belonging to this general rule, whereby, especially in cases of general or implied agencies, the usages of a particular trade or business, or of a particular class of persons, are properly admissible, not, indeed, for the purpose of enlarging the powers of the agents employed therein, but for the means of interpreting and rightly understanding those powers which are actually given. The power of attorney under which the agent sold the land in controversy to the defendant Medlock, did not authorize him to barter or exchange it for other property. It can not surely be seriously insisted that there has become such a general and uniform custom or usage of trade, by agents for the sale of land in this State, in contravention to the legal import of the instrument under which they derive their authority, as to overturn and abrogate the well established rules of legal construction, by which the courts would otherwise be governed. If, however, such was the fact, the testimony offered by the defendant falls far short of justifying the application in this case of such an exception to the general rule to which reference has been made, and the court did not err in excluding it from the jury.

There was error, however, in the charge of the- court. The jury were instructed in it that, although the power of attorney did not authorize the sale of the land except for money, yet if Reese lived a reasonable time after the sale, and during his lifetime did not disaffirm the sale, they might infer that he acquiesced in it, and should find for the defendant. It is evident, that the verdict of the jury must have been controlled by this charge. Under it they could not have found a verdict otherwise than as they did-

It is truly said that a subsequent ratification, except' in a few «eases of an isolated and peculiar character, of an act done by another as an agent, is equivalent to a prior authority. Where, however, the act of the agent purparts to be under seal, and in the name of the principal, so as to be his deed, it has been held, generally in common law courts, that the ratification must also be by an instrument under seal. Although this is probably the correct rule with reference to express ratifications as evidence of legal title, or to such acts of recognition and acquiescence as operate merely as evidence of assent, it can hardly be doubted that such acts as would operate as an estoppel in pais would he held sufficient in our courts to confirm a contract under seal made by an agent without legal authority. (1 American Lead. Ca., 574.) But unquestionably the burthen of proving this ratification of the unauthorized act of the agent, devolves upon the party asserting it. Assent may in some cases he presumed from acquiescence after notice. But it is a principle too clear for doubt or question, and of universal recognition, “ that there can be no binding ratification, without full knowledge.” (1 American Lead. Ca., 574 ; Story on Agency, sec. 90.) Uor is the fact of the record of the •deed from the agent, as insisted by counsel, constructive notice to the principal of its contents, much less will it give him notice that his agent has exceeded the limit of his authority. Even an inspection of the deed would not inform him of this fact. The most •that can be said with reference to the registration of the deed from the agent, and subsequent possession of the land'by the purchaser, •is, that these are facts, which in connection with all the other circumstances connected with the case, might be considered by the jury in determining whether the principal had, after full knowledge, ratified the act of his agent. The charge of the court, however, makes the delay of the principal for such length of time merely as the jury should concludé to be reasonable, to disapprove the act of the agent, although he may not have been notified of it, -conclusive evidence of ratification.

The judgment is reversed and the cause remanded.

Reversed and remanded.