Opinion
Spring Sessions, 1844.
Ridgely and Frame, for Hazzard.
Wootten, for the defendant.
SUMMONS case. On motion, judgment of nonsuit. Motion in behalf of plaintiff's attorney in fact to take off the nonsuit; and motion by defendant's counsel to dismiss the suit on the written order of plaintiff. Rules to show cause.
Francis T. Gibbons, on the 25th of January 1840, executed a letter of attorney under seal to William Hazzard, appointing him his lawful attorney, for him, and in his name, and on his behalf, to demand and receive for his use from any person indebted to him, all debts c., due and owing; and to sue for the same; to give discharges, c., and generally to negotiate, transact and perform all business for him, as fully as he could do if he were present; agreeing to ratify and confirm all the acts of his said attorney lawfully done; and further agreeing not to revoke the letter of attorney before the attorney should have settled a special matter of co-partnership with one William Laws, which was then a matter of difference, under the forfeiture of five hundred dollars.
It was admitted that this matter was settled with Laws immediately after the date of the letter of attorney. On the 14th of February, 1840, William Hazzard made the following acknowledgment to a creditor of F. T. Gibbons.
Mr. P. N. Rust, Sir: — F. T. Gibbons' note to you for fifty dollars, which will mature at about four months hence, will be met at its maturity, if the funds can be had from Dr. John Gibbons' administratrix, or so soon after as they can be collected. In arranging the affairs of Francis and his father's estate, I shall have provision made for your debt.
WILLIAM HAZZARD, Agent.
February 21st, 1840, $9,00. Mr. William Hazzard will pay Rhodes Hazzard nine dollars, out of the funds of
FRANCIS T. GIBBONS.
Accepted February 21st, 1840. — William Hazzard.
February 21st, 1840, $18 94. William Hazzard will pay to Hazzard and Prettyman, eighteen dollars and ninety-four cents out of any funds in his possession of
FRANCIS T. GIBBONS.
Accepted February 21st, 1840.
October 12th, 1840. Mrs. Arcada Gibbons, administratrix of John Gibbons, deceased, Madam: — Please pay to William Hazzard, my attorney in fact, any sum or sums of money that may have come into your hands, or may hereafter come into your hands, due to me, either as creditor or heir of John Gibbons, deceased.
FRANCIS T. GIBBONS.
Accepted as of the date within. — Arcada Gibbons.
September 29th, 1843, F. T. Gibbons addressed a letter to the court from Baltimore, through Mr. Ridgely, his counsel in this case against Arcada Gibbons, stating that he had compromised that matter with her, and was "entirely satisfied and compensated;" and that he had no claim against his father's estate.
On the other page of this letter was the following.
City of Baltimore, Sept. 29th, 1843.
Gentlemen,
Whereas a certain power of attorney given by me to a certain William Hazzard, to adjust a difficulty then existing between myself and William Laws, impowering him to act as my agent until the same should be settled, and then, to be null and void. I wish to be specially noticed, as he wishes to extend the same to my general business; such, gentlemen, is not, nor never was my intent, wish, or desire, and since my return from Missouri, I have repeatedly and often verbally cancelled it, and I now wish it officially and legally so; and do not countenance or authorize any act or will of his, in any shape, to be my intent, wish, or desire.
Respectfully,
FRANCIS T. GIBBONS.
The above letters were in the possession of Arcada Gibbons, the defendant in the cause.
The question was whether the court would allow Wm. Hazzard, as the attorney in fact of F. T. Gibbons, to prosecute this suit further against Arcada Gibbons, as administratrix of John Gibbons, after his revocation of attorney's authority. A nonsuit had been entered on account of the failure of Wm. Hazzard to procure evidence at the last term; but on his affidavit, he now satisfied the court that he had used due diligence to procure the evidence.
Rule to show cause, why the nonsuit should not be taken off.
Frame, in support of the rule. — The question is, whether Wm. Hazzard has the right to prosecute this suit, notwithstanding the order of Francis Gibbons, to discontinue it. If the court find that Wm. Hazzard has an interest in the suit, they will protect it. He has such interest under the order of October 12th, 1840. It is true that order is to pay Wm. Hazzard "my attorney in fact," but this is a mere description of the person, and does not show the want of interest which Hazzard has in the order.
Wootten. — The terms of the order are conclusive. It was given to pay the money to the attorney in fact of Francis Gibbons, and not to Wm. Hazzard as having any personal interest in it. It proves none.
Rule discharged.