| Ga. | May 11, 1905
(After stating the facts.) The brief of evidence in this case is not clear, nor'is it easy to determine how the presiding judge arrived at the amount which he required to be written off from the verdict. It is evident, however, that the right to incur at least a portion of the expenses claimed by the plaintiff in the account depended upon a power of attorney given by the defendant to W- D. Young on September 5,1883, which contained the following provisions: “ I, Sara E. White, of the city and State of New York, have made and constituted and appointed, and by these presence do make, constitute, and appoint W. D. Young, of the county of Rabun and State of Georgia, my sufficient attorney for me and in my name to enter upon certain lots of land [describing them] and possession of the same to claim and demand for me in my name. To institute such actions as to my said attorney shall seem proper for the recovery of said lands; if necessary, to employ counsel to prosecute the same, and generally to do all such other acts and things as my said attorney deems necessary in the premises, hereby ratifying whatever my said attorney may lawfully do in the premises.” This was a formal power of attorney, appa
Power to the agent to recover possession of certain property, to institute suits therefor, if necessary, and to employ counsel to prosecute the same, contemplates a recovery of property not in the possession of the maker of the power. After recovery has been had, such a power of attorney does not continue indefinitely of force, so as to authorize the attorney in fact to defend a suit which may at some future time be brought by others seeking to recover .the land, or for the purpose of enjoining persons who may in the future trespass upon it, and to incur expenses and employ an attorney in such suits.
It appears that the presiding judge charged the jury as follows: “I charge you, that an agent who has discharged his duty is entitled to his commission (but in this case the parties are not suing for commission), and all necessary expenses incurred about the business of his principal. If he has violated his engagement, he is not entitled to commission, though it is not contended in this case, that the agent has violated his engagement.” This appears to be good abstract law, but it is not well to charge the jury about matters which are not in the case; and- if a contention is in fact in a case, it is erroneous to charge that it is not. Some of the items in the account other than those mentioned may not have been very clearly shown by the evidence, but as a new trial is to be had, it is unnecessary to rule further than as set forth above.
Judgment reversed.