State ex rel. Ranstead v. Banks

48 Md. 513 | Md. | 1878

Baktol, O. J.,

delivered the opinion of the Court.

This suit was brought by the appellant against the appellees upon an injunction bond.

It appears that on the 7th day of September 1874, am application was 'made to the Circuit Court of Baltimore City, in the name of Daniel B. Banks, for an injunction' to restrain the appellant, Ranstead,-from the continuance of certain acts of alleged trespass, &c. to the property of the complainant, D. B. Banks. The injunction was issued, but upon final hearing was dissolved. The order granting the injunction required Daniel B. Banks to execute an injunction bond in the penalty of Jive thousand dollars,- and this bond is the cause of action in the present suit.

The bond was not signed by Daniel B. Banks, but was executed in his name by Andrew D. Banks “ as his attorney in fact” and by Andrew as surety.

- At the trial below the appellant offered the bond in evidence, and also offered in evidence a power of attorney from Daniel B. to Andrew D. Banks, dated April 4th, 1873.

The appellees objected, the Court sustained the objection and refused to admit the bond in evidence ; this ruling forms the subject of appellant’s first bill of exceptions.

The second hill of exceptions was taken to the exclusion by the Court of the proceedings in the equity, and law suits .between the parties, offered in evidence 'by the appellant.

The main question presented by the appeal arises upon the construction of the power of attorney. This instrument is very broad and comprehensive, conferring almost unlimited powers upon the attorney to act for and in the name of the principal in all matters relating to the management, and disposition of his business and property. After enumerating the powers to sue for, collect and receive all moneys due the principal, and to give discharges therefor, to draw and accept drafts and bills of exchange, to sell and transfer stock, to receive all dividends that may become due thereon; the instrument contains these words “ and in all other lawful respects to act as my general agent and attorney in such matters, as are not hereinbefore particularly recited including therein especially full power and authority in my name and as my said attorney to execute, acknowledge and deliver all deeds, conveyances and leases of any or all of my real or leasehold estates,” &c. * * * * “ giving and hereby granting unto my said attorney, full power and authority in and about the premises and to use all due means, course and process in the law for the full, effectual and complete execution of the business aforedescribed, * * * * and for the premises to appear and the person of me the constituent to represent before any Governor, Judges, Justices, officers and ministers of the law whatsoever, in any Court or Courts of judication, and there in my behalf to answer, defend and reply unto all actions, causes, matters and things whatsoever relating to the premises, * * * * and generally to say, do, act, transact, determine, accomplish and finish all matters and things whatsoever relating to the premises, as fully, amply and effectually to all intents and purposes as I, the said constituent, if present, could or might do personally, although the matter should require more special authority than is herein comprised.” * * * *

The question here presented is whether this instrument conferred upon the attorney the power to sue out the writ of injunction, and to bind the principal by the execution of the injunction bond in his name.

(Decided 2nd May, 1878.)

The object of the writ of injunction was to restrain certain alleged trespasses upon the property of the principal and to save it from irreparable damage. Now the manifest object and purpose of the power of attorney was to place the property of the principal, in the control and management of the agent, and to confer on him the power to adopt, in his discretion, all lawful means necessary for its security and protection. Considering the terms of the instrument and the purposes which the agent was appointed to accomplish, which it has been said ‘ ‘ is the guiding principle in construing instruments of this kind,” we have no hesitation in saying that it was clearly within the power of the agent to institute the suit and to execute the bond for the purposes mentioned; and consequently the bond was valid and binding upon Daniel B. Banks in the same manner as if it had been executed by him in person.

As the bond was binding upon the principal there can be no doubt or question of the obligation of Andrew D. Banks the surety thereon.

It is unnecessary therefore to consider the question of estoppel as affecting the liability of Andrew D. Banks.

The suit however in its present form cannot be maintained. It was error to join the surviving obligor, and the executor of the deceased obligor in the same action. In such case, separate suits only can be maintained, for the reason that they are liable in different rights, and the judgments if recovered will not be the same ; one being de bonis propriis and the other de bonis testatoris; and this rule applies in the same way where the person is executor and surviving obligor.

The judgment will therefore be affirmed, but without prejudice to the right of the appellant to bring other suits upon the bond.

Judgment affirmed without prejudice.