Opinion
Argued January 18, 1878
Decided January 29, 1878
A.C. Franseoli, for appellants.
W.H. Van Cott, for respondent.
The plaintiffs' testator, taking the notes in suit, made by an agent professing to represent the defendant as his principal, is presumed to have known the terms of the power under which the agent assumed to act. He was bound to ascertain and know the character and extent of the agency, and the words of the instrument by which it was created, before giving credit to the agent. If the testator dealt with the agent without learning the extent of the powers delegated to him, he did so at his peril, and must abide by the consequences, if the agent acted without or in excess of his authority. (Story on Agency, § 72.) If there was an ambiguity in the language of the power of attorney, there is no reason why in this case there should be a forced or unnatural interpretation of the instrument to save the testator or his representatives from loss. The transaction was in the city of New York, where as well the supposed principal, as Mr. Pike, the plaintiffs' testator, and the professed agent resided, and if the power of attorney was ambiguous in its expression, or of doubtful interpretation, the defendant was accessible either to make the notes in person, or assent to and ratify the act of the agent. There may be cases in which from necessity a party dealing with an agent must act upon his own interpretation of the authority, and take the risk of any doubtful or ambiguous phraseology. But not so here. The record is barren of evidence as to the origin or consideration of the notes. The powers conferred upon the agent were limited, and by the powers of attorney as first drawn, Packard, the agent, was only authorized to draw and indorse checks on any bank in which the testator had an account, "and to do any and all matters and things connected with his (my) account in" such banks, which the principal might or could do. The last and general words only gave general powers to carry into effect the special purposes for which the power was given. ( Attwood v. Munnings, 7 B. C., 278; Perry v. Holl, 2 DeG. F. J., 38; Rossiter v. Rossiter, 8 Wend., 494; Story on Agency, § 62.) The primary and special purpose of the power of attorney was to authorize Packard to draw checks in the business of the principal upon and against his accounts in bank, and to indorse checks probably for deposit to the credit of the same accounts. The insertion of the words "promissory note or notes," by an interlineation after "check or checks," and before "on any bank," etc., must be read with the limited and special purpose of the power as first prepared in view, and not as intending to give a more extended or general power. The making and indorsing of promissory notes, either for discount or payable at the principal's bank, was a natural adjunct of the authority given to draw and indorse checks, and thus deal with and in respect of the bank accounts of the testator. The dealings and business relations of the testator with the banks with whom he dealt, and his accounts with such banks was the subject of the agency, and the instrument creating the agency restricted the powers of the agent to the making and indorsing of commercial instruments having an immediate connection with the banks with which the principal had dealings, and which would properly enter into his accounts with them.
The act of making the notes in suit was ultra vires, and the defendant is not liable thereon. A formal instrument delegating powers is ordinarily subjected to strict interpretation, and the authority is not extended beyond that which is given in terms, or which is necessary to carry into effect that which is expressly given. They are not subject to that liberal interpretation which is given to less formal instruments, as letters of instruction, etc., in commercial transactions, which are interpreted most strongly against the writer, especially when they are susceptible of two interpretations, and the agent has acted in good faith upon one of such interpretations. ( Wood v. Goodridge, 6 Cush., 117; Attwood v. Munnings, Supra; Hubbard v. Elmer, 7 Wend., 446; Hodge v. Combs, 1 Black, 192.)
The evidence of ratification and adoption of the acts of the agent by the giving the mortgages is very slight. The evidence is that the title to the property mortgaged was but nominally in the defendant, having been taken in his name without his knowledge, and as is to be inferred by Packard, the real owner, and this mortgage with another was executed at the request, and as was supposed by the defendant, for the benefit of Packard or his daughter, and upon transactions with which the defendant had no connection. The reading of the recital of the consideration by the gentleman who presented the mortgage to the defendant for execution at the request of Packard, cannot be said to have given him an intelligent appreciation of the fact recited, or the effect it would have upon the legal liability of the defendant, who testified that he did not understand or know that the mortgage was given to secure notes of which he was the maker. The evidence is very decided that the notes were not given in the business of the defendant or for his benefit, and he has never received any benefit, or derived any advantage from them so far as appears. A ratification under such circumstances should be the deliberate and intentional act of the party sought to be charged with full knowledge of all the circumstances. (Story on Agency, § 239.) The jury have found upon satisfactory evidence that there has been no adoption of these notes, or ratification of Packard's acts by the defendant.
There was no error in the admission of evidence. All the testimony offered and given by the defendant was in respect to the res gestæ, and the transactions given in evidence by the plaintiffs, and to disprove any connection with the making of the notes, or the consideration upon and for which they were made, and the relation in which he stood to the property mortgaged, and was all competent, bearing more or less directly upon the question of agency and the alleged ratification of the acts of the agent.
The question to the defendant as to his intent to ratify the giving the notes, was not the most appropriate interrogatory to draw out the evidence sought. The intent of the act was immaterial, if the defendant had deliberately and understandingly executed a deed reciting the notes as made by him and convenanting to pay them. The legal effect of such an instrument would not be evaded by the want of an actual intent to confirm the acts of the agent by whom the notes were made. The answer of the witness only went to the fact, that he did not deliberately and understandingly execute the mortgage as one given to secure these two notes as his notes past due.
There was no error upon the trial, and the judgment must be affirmed.
All concur, except ANDREWS and EARL, JJ., not voting.
Judgment affirmed.