15 Cal. 12 | Cal. | 1860
Cope, J. concurring.
The plaintiff filed this hill to enjoin proceedings at law on the part of the defendants, to recover certain real estate in San Francisco. The foundation of the plaintiff’s (appellant’s) claim to equitable relief is, that he made an executory contract in July, 1853, with one Eaton, who was then the attorney in fact for Gray, by the terms of which, he was to pay some one hundred dollars in cash, and a further sum in a few months; a memorandum of the agreement was made at the time. The one hundred dollars was paid, and the defendant, shortly afterward, let into possession, which he has since retained. Afterward, on the sixteenth day of July, 1853, he paid to Eaton the balance of the purchase money, and obtained from him a deed in the name of Gray. At the time of the first contract, Gray was in the Atlantic States; Eaton and plaintiff were in San Francisco. Gray died the day before the last payment, and the execution of the deed. The death of Gray was, of course, unknown to the plaintiff or Eaton at this last date, and the payment was made in good faith.
The main question is as to the effect of this payment to the attorney after the death of the principal. We state the proposition in this simple form, because the facts of this case do not authorize the qualifications which are made in the appellant’s argument.
Undoubtedly it is a hard rule, to hold that the death of a principal, who has, by authentic act, given to another a power to represent him in a particular transaction, should have the effect of defrauding an innocent third person of his money, when usual, and even extraordinary prudence could not avail to protect him. And the civil law, in this respect, seems more reasonable than ours; for that system, while it recognized the general rule, that a mere power expired by the death of the principal or agent, annexed this qualification, that the acts of the agent, done Iona fide, in ignorance of the death of his principal, were held valid and binding upon the heirs of the latter. (Story on Agency, p. 636.) This principle seems to have been adopted into the commercial jurisprudence of the modern nations of continental Europe; and Mr. Story adds, that similar principles will be found adopted into
Parsons on Contracts (p. 61) lays down the doctrine broadly: “ The death of the principal operates per se a revocation of the agency. But not if the agency is coupled with an interest vested in the agent. Then it survives, and the agent may do all that is necessary to realize his interest and make it beneficial to himself. Nor is such agency revocable at the pleasure of the principal in his lifetime; and if the agent dies, it passes over to his representatives. It is, in such case, an important, if not a decisive question, whether the act authorized could be performed by the agent in his own name or only by him as an agent, and in the name of the principal. In the first case, if an interest were coupled with the agency, the authority would survive the death of the principal, and the agent might perform the act in the same manner after the death as before. In the latter case, as he could no longer use the name of the principal, for the obvious reason that one who is dead can no longer act, it would seem that his right must be limited to that of requiring the representatives of the deceased to perform the act necessary for his protection.”
Kent ( 2 vol. Com. Marg’l 646) is not less explicit. That eminent writer says: “ The authority of an agent terminates by the death of his principal; and a joint authority to two persons terminates by the death of one of them. This is the general doctrine. By the civil law, and the law of those countries which have adopted the civil law, the acts of an agent done bona, fide after the death of the principal, and before notice of his death, are binding on his representatives. But this equitable principle does not prevail in the English law ; and the death of a principal is an instantaneous and absolute revocation of the authority of the agent, unless the power be coupled with an interest.” The current of authority is to the same effect. (Hunt v. Rousemairer, 8 Wheat. 174; 6 East. 356 ; 4 Camp. p. 272 [which probably goes too far] ; 2 Greenleaf R. 14; 1 Caine’s Cases in Error, 1; 6 Espinasse R.; 10 Meeson & W.; 3 E. D. Smith.)
The technical reason on which this doctrine rests is very strong—the solecism, namely, of a dead man acting by attorney, and the existence of an attorney where there is no principal. The argument of Justice Rogers, in 4 Watts & Serg., in reply to Lord Ellenborough’s interrogatory in 4 Campbell—“ How can a valid act be done in the name of a dead man ?”—is more specious than sound. The learned Justice asks,
2. We have not overlooked the point made by the counsel for the appellant, that it was in proof Eaton was a partner of Gray, and therefore had an interest in the lot sold; and hence he is brought within the exception that the execution of the power by the agent, after his principal’s death, is good when the agent has an interest in the property. But the conclusive answer is, that the bill does not set up any fact of this nature. It rests upon the mere ground of general and ordinary agency, so far as this matter goes; and proof without corresponding allegation does not help. But we are by no means convinced that the case would be altered if this allegation had been made. The meaning of this exception is a power coupled with an interest in the subject—that is to say, a power which conveys to the attorney an interest in the property. The reason of the exception is, that the death of the principal cannot affect an act of the agent, which act the agent could do whether the principal lived or died. Here the contract and sole authority came from the principal—the legal title is in him. The agent is not sought to be held, but the heirs and representatives of the deceased. If, by mere force of this alleged partnership, Eaton could sell for himself and Gray, the facts should have been stated, if this claim for relief was insisted on, so as to put this matter directly in issue. But the bill makes no such case.
3. Nor can the bill be sustained on the ground that, really, the money had been paid into the estate. If it had been shown that this was a good executory contract with Gray’s attorney during Gray’s lifetime ; that so much money was due on this contract to Gray in his lifetime ; that, after his death, it was paid to his former agent, who settled the amount with the estate in such a manner that the estate got the benefit of the payment, we do not see why, in equity, this would not be a fulfillment of the contract of the plaintiff, and entitle him to call
4. The case of the plaintiff, it seems to us, is not so hard as the counsel intimates. If he paid over the money to Eaton, and Eaton has not settled with the estate, Eaton would be responsible and compelled to refund the money. If the money were paid to the estate, then the plaintiff could defend in ejectment on a good equitable title. If he had paid a portion of the purchase money, but not all (in consequence of this litigation and the causes of it) probably a Court of equity would not debar him from paying the balance yet unpaid, and insisting on the performance of the contract first made, and enforcing a specific execution. But upon the case as it stands, we must affirm the decree, without prejudice to any future proceedings which the plaintiff may be advised to take in pursuance of the principles herein indicated.
On a petition for modification, Baldwin, J. delivered the opinion of the Court Court Cope, J. concurring.
We are asked by the counsel of respondent to modify the opinion and judgment of this Court, so as to reverse the decree of the Court below, instead of affirming it as we did. But no appeal seems to have been taken by the respondent; at least, no transcript is presented by him, and no errors assigned. We can therefore, only consider the errors assigned by the appellant. But we apprehend that the object of the respondent can be obtained in another way. The decretal order of the District Court only directed an injunction until its further order. This was in the nature of an interlocutory order, which it was within the power of the Court to' sej^ aside on a proper proceeding. The opinion of the District Judge is no part of his decree. Of course, upon the rehearing or motion of the "respondent to dissolve the injunction, the District Court would be governed by the principles of the opinion heretofore delivered. Motion refused.