Opinion
December Term, 1856.
A power of attorney, signed by the purchaser of a note, in the name of the payee, is sufficient authority for an attorney at law to appear in a cause in Court, although the agent has no written authority to make the power.
APPEAL from the Fall Term, 1856, of Wilson Superior Court, MANLY, J., presiding.
William H. Johnson, the plaintiff, had sold the note on which this action was brought to Jesse H. Adams, but had not endorsed the same. On the return of the writ in this case to the County Court, the defendants' attorney required of the attorney for the plaintiff to produce a written authority to carry on this suit, or that the same be dismissed. Thereupon Mr. Howard produced a power of attorney in due form, signed "W.H. Johnson by Jesse H. Adams." This was objected to by the defendants' counsel as not being properly executed, but was ruled by the Court to be sufficient, whereupon the defendants appealed to the Superior Court.
The same objection was urged by the defendants' counsel in the Superior Court, but was overruled by his Honor, and he gave judgment "that there was no error in the Court below;" whereupon the defendants appealed to this Court.
Howard, for plaintiffs.
Dortch, for defendants.
The legal effect of a contract for the sale and delivery of a bond, which is handed over to the purchaser without endorsement, is to constitute the purchaser an agent of the obligee to receive the money. Hoke v. Carter, 12 Ire. 325. Being the agent to receive, he of course has authority to bring suit in the name of the principal, and do all other acts necessary for the collection of the bond, — such as giving a written power to an attorney at law to bring suit.
It is insisted that, under Statute Rev. Code, ch. 31, sec. 37, by which every attorney who claims to enter an appearance, may be required to produce a power or authority signed by the party, or "by some person duly authorised in that behalf," is not complied with by the production of a power signed W.H. Johnson, (the obligee) by Jesse H. Adams, (the purchaser) agent; because, as was contended, the agency ought to be proved by writing, and the authority to sign the name of the principal cannot be shown by parol. There is no case or principle to support this position. The statute requires the power to the attorney to be in writing, signed, c., but the authority to sign the name of the principal is not required to be in writing.
The decisions upon the statute of frauds settle this question. Certain contracts are made void unless put in writing and signed by the party to be charged therewith, or "by some other person by him thereto lawfully authorised." Rev. Code, ch. 50, sec. 11. It is settled that the authority of the person signing the name of one, as his principal, need not be in writing. Indeed, if the name is signed without even a parol authority, a subsequent ratification will make it valid within the statute. Chitty on Contracts, 71, and other text books.
The form of the judgment set out in the record is agreeable to law. Russell v. Saunders, 3 Jones' Rep. 432.
There is no error.
PER CURIAM. Judgment affirmed.