SECT. 1.-Where the Authority is given by a Formal Instrument. WHEN an authority is conferred upon an agent by a formal instrument, as by a power of attorney, there are two rules of construction to be carefully attended to: A large collection of maxims and rules of interpretation will be found in Blackwell on Tax Titles, *606 et seq. In order to arrive at the intention of the parties, and to interpret the scope and meaning of the power, the court may receive evidence of the relative position of the parties, their obvious design as to the objects to be accomplished, and the nature of the business or transaction in which the principal was engaged, when the power of attorney relates to that. Brantley v. Southern Life Ins. Co., 53 Ala. 554; Maynard v. Mercer, 10 Nev. 33. See, also, Bissell v. Terry, 69 Ill. 184. But a power of attorney, and the written contract entered into by virtue of such power, though executed at the same time, are not necessarily to be construed as one paper. In the absenco of any ambiguity in the contract, or any reference to the power, the contract is to be construed by its own terms, and 1. The meaning of general words in the instrument will be restricted by the context, and construed accordingly.' 2. The authority will be construed strictly so as to exclude the exercise of any power which is not warranted either by the actual terms used, or as a necessary means of executing the authority with effect.2 the power is to be referred to only to show the nature and extent of the authority conferred. Mattock v. Young, 66 Me. 459. 1 See note 2, following. * Bissell v. Terry, 69 Ill. 184; Chase v. Dana, 44 id. 262 (a warrant of attorney); Wood v. Goodridge, 6 Cush. 117, 123; Geiger v. Bolles, 1 Thomp. & C. 129; Brantley v. Southern Life Ins. Co., 53 Ala. 554; Bosseau v. O'Brien, 4 Biss. 395; Cringhead v. Peterson, 72 N. Y. 279. Where the authority to perform specific acts is given in the power, and general words are also employed, such words are limited to the particular acts authorized. Geiger v. Bolles, supra; Billings v. Morrow, 7 Cal. 171, where an instrument executed by the principal appointed one an attorney to "superintend my real and personal estate, to make contracts, to settle outstanding debts, and generally to do all things that concern my interest in any way, real or personal whatsoever, giving my said attorney full power to use my name, to release others or bind myself as he may deem proper and expedient; hereby making the said S. my general attorney and agent, and by these presents ratifying whatsoever my said attorney may do by virtue of this power," was held insufficient to authorize the attorney to convey real estate. See, however, De Rutte v. Muldrow, 16 Cal. 505, where Billings v. Morrow, supra, was commented on, a disposition manifested not to extend the above doctrine, and the same instrument was held to authorize the agent to make a lease of real estate containing a clause giving the lessee the privilege of purchasing any part of the land during the continuance of the lease, at its value, in preference to any other person. See, also, Lawrence v. Gebhard, 41 Barb. 575, 584; Wicks v. Hatch, 62 N. Y. 535. An authority to an agent "to grant, bargain and sell the same [real estate], or any part or proportion thereof, for such sum or price, and on such terms as to him might seem meet," will not authorize the making of a conveyance in consideration of love and affection in the principal for the grantee in the conveyance. It authorizes a sale for a monied consideration only. Mott v. Smith, 16 Cal. 636. Nor for a nominal consideration of one dollar. Meade v. Brothers, 28 Wis. 689. A power of attorney authorizing the collection of debts and of personal property, contained the following clause: "Upon the receipt of any such debt, dues or issues of money, acquittances or other discharges for me, and in my name to make, seal, execute deeds of conveyance and deliver, and generally do all and every act or acts, thing or things, device or devices, in the law, whatsoever needful and necessary to be done in and about the premises, for me and in my name to do, execute and perform:" Held, insufficient authority to sell real estate, and only allowing deeds of release for mortgages, or to affect contracts theretofore made. Berry v. Harnage, 39 Tex. 638. An authority "to attend to the business of the principal generally," or "to act for him with reference to all his With reference to the latter rule, see Book II, Pt. I., Ch. II. With respect to the former rule, which is not confined to ques business," does not authorize the agent to sell real estate, nor does it allow him to sell or otherwise dispose of the personalty of his principal, unless as a means, necessary and proper, to conduct the business to which the agency applies. Coquillard v. French, 19 Ind. 274. A power of attorney to sell "claims and effects" cannot be construed to authorize the sale of land or real estate. De Cordova v. Knowles, 37 Tex. 19. An agent authorized to bargain and sell lands has no right under such power to grant a license to the purchaser, previous to a conveyance, to enter and cut timber, although such license be given with a bona fide intent to effect the sale of the lands. Hubbard v. Elmer, 7 Wend. 446. A power of attorney to convey lands held to relate to after-acquired lands. Berkley v. Judd, 22 Minn. 288. A power of attorney to make "all such deeds of conveyance and of partition to such lands as I am entitled to," authorizes a deed of sale as well as a deed of partition. Jackson v. Hodges, 2 Tenn. Ch. 276. A power of attorney authorizing in very general terms the sale and conveyance of real estate and the use of all due means therefor, and generally to do all matters relating to the premises as effectually as the principal, "if present, ought or might personally, although the matter should require more special authority than is here comprised," held to authorize a conveyance with warranty. Bronson v. Coffin, 118 Mass. 156. A general authority to an agent to collect debts and to pay and receive money, does not authorize him to bind his principal by negotiable instruments; nor can an agent having authority to collect money for his principal arising from the use or proceeds of the sale of his property, bind him by entering into contracts for which money is to be paid out. Hazeltine v. Miller, 44 Me. 177. See ante, p. 116, note. If one constitutes another his “general and special agent to do and transact all manner of business," this does not necessarily authorize the agent to sell stocks or other property of the principal. Hodge v. Combs, 1 Black, 192. The appointment of an attorney by writing "with full power and authority for me and in my name, to draw or to indorse promissory notes, to accept, draw, or indorse bills of exchange," does not authorize the attorney to draw, or indorse notes for the mere accommodation of third persons. Wallace v. Branch Bank, 1 Ala. 565. See ante, pp. 108, 116, notes. Defendant, a married woman, executed to her husband a power of attorney, authorizing him "to make, sign, indorse, and accept all checks, notes, drafts and bills of exchange " for her, which power of attorney was deposited with a bank where she kept an account. Defendant was the owner of real estate from which she received rents, but was not carrying on a trade or business. The husband gave to plaintiffs a post-dated check in the defendant's name in exchange for their check, payable to his order. The check so given by the husband was presented at maturity and payment was refused. In an action thereon, held, that the power granted to the husband was to deal with the moneys and choses in action, parts of defendant's separate estate, not to create a debt, or to charge such estate for a debt; and that the transaction was not within the terms of his authority. Nash v. Mitchell, 71 N. Y. 199. Where an agent, having a power of tions of agency, a leading case upon the general principle is Lord Arlington v. Merricke (a), decided by the King's Bench in 1672. An action of debt on a bond having been brought against the defendant, he prayed oyer of the condition of the bond. Lord Arlington, Postmaster-General for the time being, *had [146*] appointed one J. as his deputy at Oxford for the term of six months following, on condition that he would faithfully perform all the duties of the office. One of the deputy's duties was at the end of every month to pay into the General Post Office all moneys received by him in his office. The bond was dated and executed in 1667. Within two or three years of its execution, J. received money for which he failed to account, and an action was thereupon brought against the defendant as his surety. Hale, C. J., and the other learned judges, were clearly of opinion that the condition should refer only to the recital by which the defend attorney to collect any and all money due or to become due his principal from any source, and especially a certain described claim, and to give for his principal and in his name any and all receipts and acquittances necessary and proper on receiving or in order to receive any and all such moneys, and also to apply portions of such moneys to debts of the principal, and generally to do and perform any other acts in and about said business that may be deemed necessary or proper, deposits in bank to the principal's credit some of the money arising from the claim specially mentioned in the power, and afterwards, during the existence of the agency, draws out the deposit on checks purporting to be signed by the principal and believed by the officers of the bank to be genuine, the bank is discharged, whether the checks be in fact genuine or not. They are in effect receipts and acquittances in the name of the principal. City Bank v. Kent, 57 Ga. 283. An agent of a stage company, authorized to obtain surgical aid for a passenger injured by the upsetting of the coach, is not therefore authorized to employ a physician to attend one who acted as coachman, without the consent or knowledge of the company, and who had also been injured by the same accident. Shriver v. Stevens, 12 Penn. St. 258. A general power authorizing the agent to represent the principal in all his interests in a given locality, does not empower him to embark the principal in a new and different business. Campbell v. Hastings, 29 Ark. 512. See generally, ante, pp. 108, 111, 116, notes. Where a party holding a patent from the U. S. for certain lands, authorized his agent "to act upon the application and demand of any person actually owning" town lots in Denver City, within the limits of the lands, and to execute and deliver deeds to such persons as "may apply for the same within three months from" a certain date: Held, that the "application and demand" must be made within that time, but the authority of the agent to adjudicate the claims was not so limited. Clements v. Macheboeuf, 92 U. S. 418. (a) 2 Wms. Saunders, 411 a. ant was bound for six months. In Rooke v. Lord Kensington (b) the subject was fully considered by Sir W. Page Wood, V.-C. Jenner v. Jenner (c) is a later authority; but the above principle is well established, and has been applied in a variety of cases (d). Now let us turn to the more modern cases in which the question had reference to the authority of an agent. In Hay v. Goldsmidt (e), decided by the Court of King's Bench in 1804, the action was brought to recover money received by the defendants upon a bill of exchange. The bill was payable to the plaintiff's testator or his order. The testator had granted to J. and R. a power of attorney authorizing him to ask, demand and receive "all money that might become due to him on any account whatsoever, and to transact all business, and upon non-payment or non-delivery thereof, for him, and in his name, to use all such lawful ways and means for the recovery thereof as he might or could do if he was personally present and did the same." They received the bill above mentioned under this power, and having severally indorsed it in the name of the testator, discounted it with the defendants, who afterwards received the value from the acceptors. At the trial a verdict was found for the plaintiffs, but a rule was granted for setting aside the verdict and entering a nonsuit, on the ground that J. and R. had authority to indorse and discount the bill. Upon argument the court held that the power 1 See Mayor, etc. of Rahway v. Crowell, 40 N. J. Law, 207, where it was considered that the case was not altered by the fact that such officer holds for a definite term, and until his successor shall be appointed, such latter term extending the obligation to a reasonable period only for the appointment of a successor. See, also, Chelmsford Company v. Demarest, 7 Gray, 1; Dover v. Twombly, 42 N. H. 59; Welch v. Seymour, 28 Conn. 387; Mayor of Wilmington v. Horn, 2 Harr. 190; Citizens' Loan Ass'n v. Nugent, 40 N. J. Law, 215; Amherst Bank v. Root, 2 Met. 536; Commissioners v. Greenwood, 1 Dessaus. 452; Bigelow v. Bridge, 8 Mass. 275; Moss v. State, 10 Mo. 338; State Treasurer v. Mann, 34 Vt. 371; South Caro lina Insurance Co. v. Smith, 2 Hill (S. (c) L. Rep., 1 Eq. 361. (d) See per Lord Mansfield in Moore v. Magrath, 1 Cowp. 9. (e) Referred to in Hogg v. Snaith, 1 Taunt. 349. |