Opinion
(June Term, 1839.)
1. In a bill by a principal to have certain conveyances of land and slaves made by one purporting to act as his attorney declared void, surrendered and canceled for want of authority in the attorney to act for him, it is unimportant to the defense whether the plaintiff made to the agent a formal letter or not, provided it sufficiently appear that he otherwise gave him authority to contract in his name for the conveyance of the land and slaves; though such a letter of attorney would be requisite to impart validity to the deeds as legal instruments.
2. Any written or even parol authority to an agent to make sale of slaves will be sufficient; because it is an act which may be done without deed, and, therefore, the authority to do it may be without deed.
3. The fact of an authority having been conferred, and a formal letter of attorney made by a principal to his agent, for the purpose of submitting certain matters of controversy in relation to land and slaves to arbitration, and making conveyance pursuant to the award, held to be established upon the evidence furnished by the principal's letters and declarations, and by other testimony contrary to the positive allegations of his bill, and notwithstanding the inability of the defendant to produce the letter of attorney.
THE defendant, residing in Orange County in this State, was entitled under the will of his father to certain lands and slaves during his life, and at his death they were to go in remainder to other persons, of whom the plaintiff Mrs. Cates was one. The bill charged that the defendant Brewer had purchased the interests of the remainderman, except Mrs. Cates, and that she and her husband, living in Tennessee, sold and conveyed all her part of the land and slaves to the other plaintiff, Alexander Pickard, who resided in Louisiana. The bill was filed in September, 1835, and charged that in 1828, after the sale and conveyance to the plaintiff Pickard, the defendant sold, in absolute property, all the said negroes to slave traders, who carried them out of the State, whereby the rights of the remainderman would be defeated and he disabled from getting the slaves upon the death of the tenant for life. The bill then charged that the plaintiff Pickard came into North Carolina, just before filing the bill, and applied to Brewer for payment of a reasonable price for his interest in the estates or for security for the forthcoming of the negroes at the death of Brewer, and was then (429) informed that Brewer set up title to the land and slave under an award of certain arbitrators to whom the controversy had been submitted by the said Brewer and the plaintiff Alexander Pickard, through and by his attorney, Elijah Pickard, of Orange County, as alleged by the defendant; and that the award had been followed by deed of conveyance, in execution thereof, made in the name of the plaintiff Alexander by the said Elijah, as his attorney, so as to make Brewer, according to those deeds, the sole owner of the land and negroes.
Upon the existence of an authority conferred by Alexander Pickard on Elijah Pickard, and on the extent of such authority, the whole controversy turned. As to which the bill charged that the plaintiff never gave any authority to Elijah to transfer or dispose of his interest in the property, or appointed him an agent in relation to the business. It was admitted that the plaintiff once contemplated appointing him thereafter his attorney, regularly, by letter of attorney, and that on 28 July, 1832, he addressed a letter to Elijah, informing him that he would do so as soon as he could have the power prepared, after Elijah should, in a reply, communicate his Christian name, if any other besides Elijah. It was also admitted that the plaintiff soon afterwards caused to be forwarded to Elijah the conveyances from Cates and wife to the plaintiff. The bill then denied that the plaintiff received from Elijah any reply to his letters, and stated that having been in this uncertainty until the spring of 1834, the plaintiff then wrote to a gentleman of the bar of Orange County (whom he named), and requested his attention to his interest; and that in a reply, dated in July following, he learned, to his astonishment, that there had been an arbitration by which the plaintiff's claim was supposed to be adjusted. The bill then averred that the plaintiff never did execute a letter of attorney to Elijah in the premises, and that he did not intend, in and by his letter to Elijah, to appoint him his agent to transfer, dispose of, or control his interest in the land and slaves, or submit his rights therein to arbitration; and that he at no time intended to confer any powers on Elijah, except by the power of attorney, which he had contemplated sending to him, as (430) before mentioned. The bill denied that the plaintiff had received any money under the award, or in any way sanctioned it, or acknowledged the agency of Elijah Pickard. The prayer was for a discovery of the names and values of the slaves, and in whose possession, and where they were; that the conveyances obtained from Elijah Pickard might be declared void, surrendered and canceled, and that the defendant might be required to secure the delivery, at his death, of the proper share of the slaves and their increase to the plaintiff.
The answer, after admitting the interest of the plaintiff and the names and sales of the slaves, stated that Elijah Pickard, professing to be the agent of the plaintiff, proposed to sell to the defendant the plaintiff's interest in the land and slaves; and that, not being able to agree on the price, it was, after the defendant was satisfied of Elijah's authority, agreed between them to refer the whole subject to the arbitrament of three persons; that as evidence of his agency Elijah Pickard showed to the defendant a power of attorney from the plaintiff to Elijah to act for him in selling the land and slaves, or otherwise settling the controversy, and also showed a letter from Alexander to him, of similar import, which created a full belief in the defendant that Elijah Pickard was really the authorized agent of the plaintiff. The answer further stated that the articles of submission were drawn by a gentleman of the bar whom the plaintiff himself, by letter, as well as Elijah as agent, had agreed to attend to the interests of the plaintiff; and that when the arbitrators met (which was on 17 August, 1833), they inquired whether the said Elijah had authority to act for the plaintiff, and were informed, both by the said Elijah and the counsel, that he had a full power of attorney, which was in the possession of one of them; and that thereupon the arbitrators heard the evidence, the parties and their counsel, and made their written award that the defendant should pay the plaintiff the sum of $647, at certain days therein mentioned, and that upon such payments being made, proper conveyances should be made to (431) Brewer "to close all claims between them"; that the defendant accordingly paid the sum as required by the award, and that thereupon the said Elijah, in the name of the plaintiff, executed the deeds to the defendant; to whom, also, he promised to deliver the power of attorney, though he never did so. The answer admitted that the defendant was unable to produce the letter of attorney, but it insisted that he ought nevertheless to have the benefit thereof, as it once existed, and that the letters from the plaintiff to the said Elijah did, by themselves, contain a sufficient authority to contract for the sale of the land and to sell the slaves, although it were insufficient to enable the agent to execute deeds, and, therefore, that the plaintiff could not have any relief in this suit.
To the answer the plaintiff replied, and the parties proceeded to their proofs. The plaintiff took no proof of any material point. On the part of the defendant the articles of submission and the award, dated 17 August, 1833, were exhibited and proved; and they appeared to be to the effect stated in the answer; and also the receipts, on the award, of Elijah Pickard, for the sums of money to be paid by the defendant under it.
The defendant did not exhibit a letter of attorney from the plaintiff to Elijah Pickard; but, to establish its existence, he proved and read in evidence three letters from the former to the latter, written from Louisiana. The first was that mentioned in the bill and answer, bearing date 28 July, 1832; in which the parts material to this question were as follows:
"I have long intended writing to you, but have been waiting until I should get my papers prepared, to appoint you my legal agent to transact that business with Mr. Brewer. I received a letter from Mr. B., saying that if I would appoint you, you would attend to the same. Shortly after this information, I gave my papers to the parish judge, who was to make out the power of attorney, send to the Governor and get his seal — all which seemed to be necessary — and return them immediately. He has as yet neglected them. But as I have just received a letter from D. Turner" (another remainderman), "who informs me that he (432) has filed a bill praying that the property may be given up, or that we may have security for the same, at Brewer's death, I have thought proper to write you immediately. The original transfer is in Tennessee, where I shall direct it on to you, as you will need it. I shall, as soon as possible, forward you the papers with unlimited power to act, so that you can sell or negotiate as you may think proper, as I am at such a distance, and an imperfect judge of the case, so that I shall leave it entirely with you. Write me immediately on receipt of this, giving me all the information you can. After seeing Mr. Turner, you will know what is the probable expense. Mr. Brewer, when he last wrote me, informed me that if I would appoint an agent, and they could not agree, he was willing to leave it to referees; and as I am not disposed to incur cost unnecessarily, and this seems to be a fair way in the general of settling business, I informed him I should accede to his proposition; but of all these matters I leave you to judge, requesting you to settle it in the safest, cheapest, and quickest way. I would again say, write immediately, as I think you have a letter in your name that I do not recollect."
The second letter was dated 6 March, 1834, and in it the plaintiff thus expressed himself on this subject:
"I have waited long and in vain for a letter from you on the subject of my business with Mr. Brewer. I still feel very anxious to have that matter arranged, so that, if Brewer should drop off, I should be secured in the right of my property, or rather in the possession of the same. I have long since requested my friends in Tennessee to forward to you my title papers, which I hope they have done; and if they have, I would be glad you would consult a reputable attorney on the legality of the same, and also with regard to the power of attorney I must give, in order to enable you to prosecute immediately. If I mistake not, I informed you long since, in a letter that Mr. Brewer wrote to me, if I would appoint an agent, he would settle the matter with him; or, if they could not agree, leave it to disinterested men, and abide their verdict. I would be glad, on the receipt of this, you would proceed without delay, and give me all necessary information, and you shall immediately be empowered to proceed against him."
The third bore date 20 November, 1834, and was as follows: (433)
"Your favor of 1 October came duly to hand. I am sorry to add that I am somewhat dissatisfied with the settlement of my business with Mr. Brewer. I am willing he should have ample justice done him, but am unwilling that he should receive two-thirds of my part of the estate. I was willing, and am still willing, to give him up the land, if he would give me up the negroes; all of which I have no doubt he can produce, except the oldest boy.
"In this matter, I wish to be understood. If your compromise has been legal, I have nothing more to say on the subject. You state you have no doubt all my money would be ready when called for; and that $400 was due last fall, and the balance this.
"On the receipt of this, I would be glad you would inform yourself of these facts, as well as see Mr. N. (the counsel), whom I shall address by this mail, and then inform me of the result. Had my business been satisfactorily settled, I should have visited Orange again."
The defendant also examined as witnesses Elijah Pickard, the counsel who was employed to conduct the business, and one of the arbitrators.
Mr. Pickard stated that, besides the letters already set forth, he received from the plaintiff at least two others on the subject of this controversy. Being asked whether he ever received the papers mentioned in the letters produced, and whether he was by such papers constituted the plaintiff's attorney in said matter, he replied that he did receive papers, which he believed to be those spoken of, and that, upon receiving them from the plaintiff, he referred them to the counsel spoken of, to know if they were competent to make him the legal attorney of Alexander Pickard, and was by him informed that they did. Being asked whether he delivered those papers to the defendant, or knew where the other letters were, he replied that he did not deliver them to the defendant and that he did not know where they were, except that he was informed by his family that when the plaintiff came into Orange he had access to all the papers of the witness, during his absence (434) from home, and that shortly afterward the plaintiff himself informed the witness that he got all the letters he had written him on said controversy, and had left them with a person in the neighborhood. The witness stated further that on the arbitration his authority was inquired for, and that the counsel replied that he was properly authorized to act, and the witness so believed himself to be.
The arbitrator stated that he could not distinctly recollect that the arbitrators asked respecting the authority of Elijah Pickard to represent the plaintiff, but he thought they did.
The professional gentleman stated that in 1833 he received a letter from the plaintiff, desiring him to act as his counsel in managing the claim against Brewer; and the plaintiff therein referred him to Elijah Pickard, whom, he said, he had appointed his agent, with full authority to settle the business, either by suit, arbitration, or otherwise. He was about filing a bill in equity when Elijah, the agent, informed him that he and the defendant had agreed to submit the matters to three arbitrators; that the witness thereupon drew the submission and attended on behalf of the plaintiff before the arbitrators, who, after a full and fair investigation, made the award. He immediately wrote to the plaintiff the result. The witness afterwards received from the plaintiff another letter on the subject, in which he took no notice of the witness's letter to him, although there was time for it to have arrived before the plaintiff last wrote; and in consequence thereof the witness again communicated to the plaintiff what had been done.
He further stated that at the time of the arbitration he was satisfied that Elijah Pickard had a regular and sufficient power of attorney from Alexander Pickard to settle the business by arbitration, and that he was unable to account to himself how he could have suffered the business to be transacted unless he had seen and examined it. Yet he stated that he could not, at the time of his examination, recollect that he ever saw such a paper, nor that an inquiry was made of him for it by the arbitrators. He further stated that about the time the bill in this case was filed the plaintiff applied to the witness to rip up the settlement. The witness informed him that he must get somebody else to do it, for (435) that the settlement was made by the plaintiff's authority and direction, and the trial was fair and impartial, and the witness had been instrumental in making the settlement and could have no hand in undoing it; and that to those remarks the plaintiff replied, "that it was true he had authorized the settlement, and that he would have been perfectly satisfied with it if the arbitrators had allowed a reasonable price for the negroes."
The witness finally stated that he had made a thorough search amongst his papers for the letters between him and the plaintiff, and had been unable to find them.
W. A. Graham for plaintiff.
Badger and Waddell for defendant.
For the purposes of the present suit it is unimportant whether the plaintiff made to his agent, Elijah Pickard, a formal letter of attorney or not, provided it sufficiently appear that he otherwise gave him authority to contract in his name for the conveyance of the plaintiff's interests in the land and slaves, or to submit the controversy to arbitration. To the deeds made to the defendant a letter of attorney would be requisite to impart validity as legal instruments; and if the plaintiff were proceeding at law, there might be more difficulty in substantiating the defense. But the equity of the bill is fully answered by any written or even parol authority to make sale of the slaves, because that is an act which may be done without deed, and, therefore, the authority to do it may be conferred without deed.
The plaintiff's letters, which remain and have been proved in the cause, create in themselves the competent power to do everything but execute conveyances. It is a quibble on the terms found in parts of the letter of July, 1832, to say, as the bill does, that the plaintiff did not thereby confer any authority, but only expressed an intention to do so in futuro. The meaning on the other hand is plain enough that he (436) thereby appointed Elijah Pickard his agent, as far as it could be done by letter; but that he had intended, and did then intend, to make that appointment in a manner the most formal, as soon as he could have the instrument prepared, whereby the agent would have power to do everything which his principal might; that is to say, fully complete, as well as enter into, an agreement. The very object of writing at that time requires this construction of the letter. Why did the plaintiff write "immediately"? To let the other know that his purpose was to appoint him his attorney? Certainly not, for he says that a friend had informed him that the other would attend to the business as his agent; and, moreover, he had his title papers sent to him forthwith. Then, the plaintiff wrote at that time, that he might have an agent upon the spot ready to act immediately for the preservation of his rights, to whom, for the purpose of meeting formal objections from the other side, he would remit an indisputable commission, delegating "unlimited power" in express terms. But the agent was not to await the arrival of that instrument before doing anything; for, besides similar expressions elsewhere, the letter, after mentioning the plaintiff's acceding to Brewer's proposition for a reference, adds, "but of all these matters I leave you to judge, requesting you to settle it in the safest, cheapest, and quickest way." These words import a present, and not a future, purpose to constitute the agent; and that, too, with the view of a cheap and expeditious adjustment, instead of the more dilatory and expensive remedy by litigation.
But the Court is satisfied from the evidence that the power of attorney, on the want of which the bill so much insists, was in fact executed and sent by the plaintiff. Why should it not have been? It is pretended that the plaintiff was not certain of the agent's name. But that cannot account for his waiting two years without further inquiry, and when he seems to have been so anxious about his rights and so fearful of the loss of the slaves. In the next of the letters filed there is no intimation that he had been prevented by that cause from sending the power, nor that he had not received a reply to his first letter, accepting the proffered agency. It purports, indeed, to be written by one who was (437) ignorant of what had been done in the business, and might have been designedly thus written, after the plaintiff had received the advices from his agent and counsel which they gave him. But the strong and conclusive circumstances are that the agent swears that, besides those letters, he received two others at least, and under cover of them, papers, among which purported to be a power of attorney, which, when by him submitted to the reputable counsel employed by him, he was advised was a regular and sufficient power; and the counsel also swears that although he cannot now remember examining or seeing such a paper, he was, at the time of transacting the business, satisfied that the agent had such authority; and he is sure that, if there had not been such an authority, he could not have suffered it to go on. Now, when to that testimony are added the facts that the plaintiff had access to the agent's papers in his absence, and by his own admission took away some of the letters which he wrote, and still retains them, and that the letters thus suppressed are those which, according to the course of the correspondence, would have enclosed the letter of attorney and particularly mentioned it, we are furnished with grounds of the strongest presumption against the plaintiff. That presumption is greatly fortified by other parts of the correspondence and the declarations of the plaintiff. In his first letter to his counsel he stated that "he had appointed Elijah Pickard his agent, with full authority to settle the business by suit, arbitration, or otherwise." In the letter of 20 November, 1834, in which he first admits the receipt of advice of the settlement, he firmly expresses his dissatisfaction therewith, and his wish to get rid of it; but he does not intimate a want of authority in those who acted for him as a ground for doing so. On the contrary, he admits himself to be bound by the award, provided the arbitrators were sworn and otherwise proceeded in the way which he supposed to be legal. Again, just before he commenced this litigation the plaintiff explicitly admitted to the same counsel that he, the plaintiff, had authorized the settlement, and stated his objection to be to the sum allowed and not to the want of authority. It may be safely assumed, we think, that this admission never would have been retracted but for the opportunity the plaintiff probably (438) afterwards had, and used, for preventing the agency of Elijah Pickard being established by the production of the instrument which conferred it. At all events, the circumstances are of a character which compel the Court to conclude that the plaintiff, by his deed and letter of attorney, in 1832, appointed Elijah Pickard his agent, with authority to do the several acts alleged in the pleadings to have been done by him in the name of the plaintiff. The bill must, therefore, be
PER CURIAM. Dismissed, with costs.