Rossiter v. Rossiter

8 Wend. 494 | N.Y. Sup. Ct. | 1832

By the Court Savage, Ch. J.

. The distinction between a general and special agent is well settled : the acts of the former bind the principal, whether in accordance to his instructions or not; those of the latter do not, unless strictly within his authority. In this case, the defendant was the special agent of Pynchon; his letter of attorney specifies what business he is to transact: 1. He was to collect all demands due Pynchon, and to discharge and compound the same; He had authority to dispose of the real estate of Pynchon; and 3. To accomplish at discretion a complete adjustment of all the concerns of Pynchon. Does this latter clause confer any authority not relating to the business previously mentioned ? The case of Hay v. Goldsmidt, cited by Lawrence, justice, in Hogg v. Smith, 1 Taunt. 356, was as follows : The plaintiff’s testator had given a letter of attorney to J. & R. Duff to ask, demand and receive of the East India Company all money that might become due to him on any account whatsoever, and to transact allbusiness, and upon non-payment, to use all such lawful ways and means as he might do if personally present. Under this power the attornies received an India bill which they endorsed to the defendants, who discounted the bill; the defendants received the money on the bill, to recover which this action was brought. The court was of opinion that the power to transact all business did not authorize the attornies to endorse the bill; they said "the most .large powers must be construed with reference to the subject maJ ter; the words all business must be confined to all busine^P necessary for the receipt of the money. In Fenn v. Harrison, 3 Taunt. 757, a special agent endorsed a bill contrary to .the instructions he had received from his principals, and the court held that they were not liable. In The East India Co. v. Hensley, 1 Esp. 111, the distinction was taken between a general and special agent; and where a broker was authorized to purchase the best Bengal raw salk, but purchased that which was not so, Lord Kenyon held the principal was not holden, because the contract was made without his authority*. In Batty v. Carswell, 2 Johns. R. 58, an attorney was authorized to sign a note for the defendant of $250, payable in six months, and he drew one payable in sixty days. Livingston, justice, says “ this was a special power and ought to have been strictly pursued;” and the note was made without authority. In Nixon v. Hyserott, 5 Johns. R. 58, a power was given to execute, seal and deliver such conveyances and assurances as might be necessary, but no special authority was given to bind the principal by covenants ; the attorney executed a deed with the covenants of seisin, &c. and the court said a conveyance or assurance is good and perfect without warranty or personal covenants, but no authority was given to bind the principal by covenants. In Gibson v. Colt, 7 Johns. R. 390, the owners of a vessel authorized the master to sell a ship in the same manner as they themselves might and could make sale, &c. The master sold the vessel and represented that she was a registered vessel, whereas she had only a coasting licence. The court held the owners were not bound The master was a special agent, and if he exceeded Ms authority when he made the representation, his principals were not bound, and therefore the remedy was against the agent alone. The same doctrine will be found in White v. Skinner, 13 Johns. R. 307, and Munn v. Commission Co. 15 id. 44, and many other cases.

It was contended on the part of the defendant that Pynchon had recognized the acts of the defendant subsequently, and thereby his liability on the note was established, even if the authority by the letter of attorney were doubtful; but I apprehend the true question is, whether the defendant had at the time authority to sign the note, and thereby obligate Pynchon to its payment. The note when executed was either the note -of one or'the other ; if it was the note of Pynchon, then the defendant is not liable ; if it was not the note of Pynchon, it was the defendant’s note. The cases cited shew that the authority of a special agent must be strictly pursued. The letter of attorney specifies two subjects upon which authority is given, and it is added, to accomplish a complete adjustment of all my concerns in said state. According to the case in Taunton, this only extends to the collection of money, and the disposition of the real estate. It seems to me it is going too far to say that the power given authorized the giving a note for $600, or any other sum. Making an adjustment of his concerns, if it relates to any subject not previously mentioned in the letter of attorney, is no authority for sigmng a note. If the judge erred in Ms charge, it was an error in favor of the defendant.

New trial denied.