KINDIG v. MARCH.

SUPREME COURT OF INDIANA. 1860.

[15 Ind. 248.]

APPEAL from the Elkhart Common Pleas.

PERKINS, J. Kindig gave a power of attorney to Chamberlain, to confess a judgment in favor of March, for a debt due to him.

The power was duly executed and proved. We are satisfied of this from an examination of the record.

When judgment was about to be entered in execution of the power, Kindig presented to the court a revocation of it, on the ground that it was for too large an amount. The court disregarded the revocation, and directed the judgment to be entered.

A power of attorney to confess judgment is not revocable by act of the party. See Story on Agency, § 477; 2 Archbold's Pr. p. 21. But if any fact affecting its validity be alleged, the court will permit an issue to be formed and tried, and act in the premises accordingly, annulling the warrant or reducing the amount of judgment upon it, as the case proved may require. In this case the defendant may yet have the judgment corrected, on complaint filed and heard, as in other Archbold, supra; 15 Petersdorf, pp. 366, 367, 368. PER CURIAM. The appeal is dismissed, with costs.

cases.

R. Heath, for appellant.

E. M. Chamberlain, for appellee.

BLACKSTONE v. BUTTERMORE.

SUPREME COURT OF PENNSYLVANIA.

[53 Pa. 266.]

1867.

ERROR to the Court of Common Pleas of Fayette County. This was an action of ejectment, by Henry Blackstone against George Buttermore, for a tract of land in Fayette County.

The foundation of Blackstone's claim was as follows:

Buttermore, being the owner of the land in controversy, on the 15th day of February, 1864, gave a power of attorney to Daniel R. Davidson to sell it for $25,000, on terms mentioned in the power, which concludes," and I hereby ratify and confirm whatever contract he may make in accordance with the above authority, and hereby bind myself for its execution. This authority is irrevocable before the 1st day of May next.'

Davidson, as attorney of Buttermore, on the 19th day of Aprü, 1864, entered into an article of agreement with Blackstone for the sale of the land, which Buttermore refused to carry out. There was evidence that Buttermore had revoked the power of attorney and Blackstone had notice of the revocation before he entered into the article with Davidson.

The court (STERRETT, P. J.) charged:

"It is claimed by the plaintiff's counsel that the power of attorney to D. R. Davidson, being in terms'irrevocable,' &c., could not be revoked by the defendant Buttermore; and more especially so, when taken in connection with the testimony as to the compensation which Davidson was to receive for selling the land.

"We cannot so instruct you. On the contrary we are of opinion that there is nothing in the power of attorney itself, or in the other evidence, or in both considered together, that could prevent Buttermore from revoking the power to sell the land. And, if you find that he did revoke the power of attorney and that the plaintiff Blackstone had notice of the revocation before he entered into the articles of agree ment for the purchase of the land, your verdict should be for the defendant."

The verdict was for the defendant, and the charge of the court was assigned for error.

A. Patterson, for plaintiff in error.

D. Kaine and C. E. Boyle, for defendant in error.

AGNEW, J. A power of attorney constituting a mere agency is always revocable. It is only when coupled with an interest in the thing itself or the estate which is the subject of the power, it is deemed to be irrevocable, as where it is a security for money advanced or is to be used as a means of effectuating a purpose necessary to protect the rights of the agent or others. A mere power like a will is in its very nature revocable when it concerns the interest of the principal alone, and in such case even an express declaration of irrevocability will not prevent revocation. An interest in the proceeds to arise as mere compensation for the service of executing the power will not make the power irrevocable. Therefore it has been held that a mere employ ment to transact the business of the principal is not irrevocable without an express covenant founded on sufficient consideration, notwithstanding the compensation of the agent is to result from the business to be performed and to be measured by its extent: Coffin v. Landis, 10 Wright, 426. In order to make an agreement for irrevocability contained in a power to transact business for the benefit of the principal binding on him, there must be a consideration for it independent of the compensation to be rendered for the services to be performed. In this case the object of the principal was to make a sale solely for his own benefit. The agreement to give his agent a certain sum and a portion

1 After citing Hartley and Minor's Appeal, 53 Pa. 212 (1866). — ED.

of the proceeds, was merely to carry out his purpose to sell. But what obligation was there upon him to sell, or what other interest beside his own was to be secured by the sale? Surely his determination to sell for his own ends alone was revocable. If the reasons for making a sale had ceased to exist, or he should find a sale injurious to his interests, who had a right to say he should not change his mind? The interest of the agent was only in his compensation for selling, and without a sale this is not earned. A revocation could not injure him. If he had expended money, time, or labor, or all, upon the business intrusted to him, the power itself was a request to do so, and on a revocation would leave the principal liable to him on his implied assumpsit. But it would be the height of injustice if the power should be held to be irrevocable merely to secure the agent for his outlay or his services rendered before a sale. The following authorities are referred to: Hunt v. Rousmanier, 8 Wheat. 174; Story on Agency, §§ 463, 464, 465, 468, 476, 477; Paley on Agency, 155; 1 Parsons on Contracts, 59; Irwin v. Workman, 3 Watts, 357; Smyth v. Craig, 3 W. & S. 20. The judgment is therefore affirmed.1

1 Acc. Walker v. Denison, 86 Ill. 142 (1877); Chambers v. Seay, 73 Ala. 372 (1882).-ED.

CHAPTER X.

RATIFICATION.

SECTION I.

Early Authorities.

SERLE DE LANLARAZON'S CASE.

NISI PRIUS. 1302.

[Y. B. 30 Ed. I. (Rolls Series), 126.]

THE Dean and Chapter of Exeter brought an assise of novel disseisin against Serle de Lanlarazon, and complained that they were disseised of a hundred shillings of rent in N. Serle and the others came not, and the assise was awarded by reason of their default. THE ASSISE being sworn, said that Serle and the Dean had made an exchange of certain tenements, and that Serle had charged the tenements which the Dean had put in his view, with a hundred shillings yearly, and had granted that whenever the rent should be in arrear the Dean should be at liberty to distrain; that the Dean came within the period of summons of the Eyre and distrained for the rent, and that all those named in the writ, except Serle and two others, rescued, &c. BRUMPTON, [J.]. Was he assenting in any manner to the rescue which the others made? THE ASSISE. The Dean and Chapter and Serle appointed a day for a compromise, but could not agree; and so it seems that he was assenting to the rescue. BRUMPTON [J.]. Inasmuch as the rescue was made in Serle's name, and he assented to the act, we consider him as a principal disseisor. (The reason is, as BRUMPTON [J.] then said, quia ratihabitio retro trahitur et mandato comparatur.) And so the Court adjudges that the Dean do recover his seisin and his arrears (amounting to so much), and his dainages of a hundred shillings; and that Serle and the others be taken, &c., and that the Dean, &c., be in mercy for their false plaint in respect of the two others.1

1 In the Digest, lib. 43, tit. 16, 1. 1, § 14, Ulpian speaks of Sabinus and Cassins, 'qui rati habitionem mandato comparant," and says "rectius enim dicitur, in maleficio

ANONYMOUS.

NISI PRIUS. 1405-6.

[Y. B. 7 H. IV. 34, pl. 1.]

AN inquest was charged between two parties on a writ of trespass of certain cattle taken against the peace, in which the defendant had justified as bailiff for services arrear to his lord; whereas the plaintiff said that he was not bailiff of his lord at the time of the taking. And the plaintiff said in evidence, that the defendant took the beasts claiming heriot for himself, so that he could not at that time be bailiff to another. And after their charge, GASCOIGNE [C. J.] said to them, that if the defendant took them claiming property in himself by way of heriot, although the lord afterwards agreed to that taking for the services due to him, still he could not be said to be his bailiff for that time. But if, without command, he had taken (the cattle) for services due to the lord, and the lord had afterwards agreed to the taking, he should be adjudged as bailiff, although he was not his bailiff in any place before the taking, Quod nota.1

In trespass, the defendant did justify as bailiff unto another. The plaintiff replied that he took his cattle of his own wrong, without that ratihabitionem mandato comparari." Again, in lib. 46, tit. 3, 1. 12, § 4, Ulpian says: "Rati enim habitio mandato comparatur." And see Story on Agency, § 239.

In Bracton de Legibus, f. 171 b, it is said: “Ratihabitio in hoc casu comparatur mandato."

Among the rules appended to the Sext are these: "IX. Ratum quis habere non potest quod ipsius nomine non est gestum. X. Ratihabitionem retrotrahi, et mandato non est dubium comparari. . . . XXI. Quod semel placuit amplius displicere non potest. .. XXXIII. Mutare consilium quis non potest in alterius detrimentum. . . . XLIII. Qui tacet, consentire videtur. XLIV. Is, qui tacet, non fatetur; sed nec utique negare videtur. LV. Qui sentit onus, sentire debet commodum, et e contra. LXXVII. Rationi congruit, ut succedat in onere, qui substituitur in honore." Sexti Decretalium, lib. v. tit. xii., De regulis juris. See ante p. 1, n. 1.

In Co. Lit. 207 a, it is said: "Omnis ratihabitio retro trahitur et mandato æquiparatur."-ED.

1 Reprinted from 6 M. & G. 239, note (a), where the reporters say: "With respect to the last part of the Chief Justice's statement, it is, however, observable that Lord Brooke, after abridging or rather transcribing this case, adds, Quod quære inde, for if he was once a trespasser without authority, the agreement cannot help him, for an action was vested before.' Bro. Trespass, pl. 86. In T. 22 E. IV. Fitz. Bayllye, pl. 4, a distinction is taken between a person acting as bailiff and a person acting as servant, a precedent authority being said to be necessary for the latter, though not for the former. Vide Chambers v. Donaldson, 11 East, 65."-ED.