Martin Very, Appellant v. Jonas Levy

• Decision Date: 01 December 1851
• Citation: 14 L.Ed. 173,13 How. 345,54 U.S. 345
• Parties: MARTIN VERY, APPELLANT, v. JONAS LEVY
• Court: U.S. Supreme Court

54 U.S. 345

13 How. 345

14 L.Ed. 173

MARTIN VERY, APPELLANT, v. JONAS LEVY.

December Term, 1851

THIS was an appeal from the Circuit Court of the United States for the District of Arkansas.

In 1841, one Darwin Lindsley owned a lot of land in the town of Little Rock, and State of Arkansas, which was known as lot No. 7, in block or square No. 35, in that part of the city west of the Quapaw line, and known as the Old Town.

On the 3d of March, 1841, he sold this lot to Jonas Levy, who gave two bonds, each for $4,000, one payable five years after date, and the other six years after date. Both were to carry interest, at 7 per cent., payable quarter-yearly. The bond, payable in five years, was not involved in the present suit, and no further notice need be taken of it. Both bonds were secured by a mortgage of the property.

On the 25th of March, 1841, Lindsley assigned the six years' bond to Martin Very, a citizen of the State of Indiana.

This bond had the following credits indorsed upon it:

1841, March 15 $550.00

1842, January 29 181.12

1843, March 3 (in goods) 1898.25

The last credit was signed Martin Very, by J. S. Davis, and arose in this way:

On the 25th of November, 1842, Davis addressed the following letter to Levy.

NEW ALBANY, Indiana, Nov. 25, 1842.

DEAR SIR,—My object in writing to you, is to inquire what

you will give in cash and jewelry for the last note that you gave to Darwin Lindsley, and which was assigned by him to Martin Very. I have bonght a part of the note, and am authorized to make disposition of it, and I thought, as a matter of justice, you should have the refusal of the note, at a considerable discount, if you desired it. Please let me hear from you at your earliest convenience. I write for myself and Mr. Very.

I am, respectfully yours, &c.

Mr. JONAS LEVY.

JOHN S. DAVIS.

(Indorsed,)—Mr. JONAS LEVY, Little Rock, Arkansas.

(Postmarked)—New Albany, Ind., Nov. 26.

On the 28th of January, 1843, Very executed the following power of attorney to Davis:

Know all men, by these presents, that I, Martin Very, of the county of Floyd, and State of Indiana, have made, constituted, and appointed, and do, by these presents, make, ordain, constitute, and appoint, John S. Davis, of the city of New Albany, Indiana, my true and lawful attorney, for me, and in my name, and for my use, to ask, demand, sue for, recover, and receive, all such sum of sums of money, notes, bills, bonds, mortgages, or debts, which are or shall be due, owing, or belonging to me, in any manner, or by any means whatsoever; and I hereby give my said attorney full power and authority to trade, sell, and dispose of any notes, bills, bonds, or mortgages, held or owned by me, on any resident or residents of the State of Arkansas; and I hereby give my said attorney full power and authority, in and about the premises, to have, use, and take all lawful ways and means, in my name, for the purposes aforesaid; and, upon the receipt of such debts, dues, or sums of money, to make, seal, and deliver, acquittances and other sufficient discharges for me, and in my name, or, upon the sale of any bill, bond, note, or mortgage, to execute a good and sufficient assignment of the same to the purchaser thereof, for me, and in my name; and, generally, to do and perform, in my name, all other acts and things necessary to be done and performed in and about the premises, as fully and amply, to all intents and purposes, as I myself could or might do, if personally present; and attorneys, one or more, under him, for the purpose aforesaid, to make and constitute, and again at pleasure revoke. And I hereby ratify and confirm all and whatsoever my said attorney shall lawfully do, in my name, in and about the premises, by virtue of these presents; and I hereby make this power of attorney irrevocable, to all intents and purposes. In testimony whereof, I have hereunto set my hand and seal, this, the 28th day of January, in the year of our Lord 1843.

MARTIN VERY. [SEAL.]

Signed, sealed, and delivered in presence of

Jos. P. H. THORNTON.

Under this power, Davis went to Little Rock, and, on the 3d of March, 1843, put the receipt above mentioned upon the back of the bond for $1,898.25, paid in goods; and, on the same day, executed the following paper, viz.:

LITTLE ROCK, March 3d, '43.

I hereby agree to take in goods, such as jewelry, &c., the balance due me on a note assigned by D. Lindsley to me, as also a mortgage assigned by the said Lindsley; said goods to be delivered to me, or any agent at Little Rock, Arkansas, at reasonable prices, at said Little Rock; said goods to be called for within twelve months from this time.

MARTIN VERY.

By J. S. DAVIS, Attorney in fact.

Davis stated in his deposition that, in January, 1844, he wrote to Levy, directing him to pay the balance, in jewelry, watches, &c. to Mr. Waring, in Little Rock; that he received an answer from Levy, declining to do so; but that he had lost or mislaid this answer from Levy.

On the 3d of February, 1844, Davis wrote to Levy the following letter:

NEW ALBANY, Feb. 3, 1844.

DEAR SIR,—If you can pay the balance of your note in good silver or gold watches, and good jewelry, at fair prices, say about half of each, or two thirds watches, you will please notify me of the fact by return of mail, and I will send on for them at once. The things you let me have before were too high,—at least Mr. Very says so. Let me hear from you. I am your friend,

JOHN H. DAVIS.

MR. J. LEVY.

(Postmark)—New Albany, Ind., Feb. 5.

(Indorsed)—MR. JONAS LEVY, Jeweller, Little Rock, Ark.

In April, 1848, Very filed his bill in the Circuit Court of the United States for the District of Arkansas against Levy, for the purpose of foreclosing the mortgage. The answer of Levy admitted all the allegations of the bill, but set up as a defence the execution of the power of attorney by Very to Davis, and the subsequent agreement between Davis and himself, by which the goods were to be called for within twelve months. It was then alleged, that not only during the next twelve months, but always afterwards, Levy had kept on hand goods enough of the proper character to pay the balance due, been always ready and still was ready to deliver them, and had often urged the complainant to receive and accept them, and would deposit them in the custody of any one directed by the court.

Levy brought into court a large quantity of goods and jewelry, which was placed in the hands of a receiver.

The case being heard on bill, amendment, answers replications, exhibits, and testimony, the court held Very bound by the agreement, and found that Levy had always had sufficient goods on hand ready to be delivered; and directed the master to ascertain the balance due on the bond, and the value of the goods delivered to the receiver.

The master reported the balance due on the 3d March, 1844, to be $2,002.59, and the value of the goods, $5,776.99. No exception was taken to the report, and it was confirmed.

The court then ordered the complainant to select out of the goods, to the amount of $2,002.59, and on his failure, after notice to his solicitor, that the master should do so. The complainant failed to select; the master set apart the requisite amount, the residue were redelivered to Levy, and the court decreed that Very should receive the goods so set apart by the master, and that the bond and mortgage were satisfied; denied the relief prayed, and dismissed the bill; all costs to be paid by the complainant.

Very appealed to this court. It was argued by Mr. Sebastian, for the appellant, and by Mr. Lawrence, for the appellee, on whose side there was also a brief filed by Mr. Pike.

Mr. Sebastian, for appellant.

Much irrelevant matter is drawn into the case, which it is not my purpose to notice; and except the points noticed below, the whole defence fails, upon the well-settled principle that matters set up in an answer by way of avoidance avail nothing unless proved. 1 Munf. Rep. 373; 1 Johns. Rep. 590; 14 Id. 74; 4 Paige, 33; Cathcart v. Robinson, 5 Pet. Rep. 267; United States Bank v. Beverley, 1 How. U. S. Rep. 151.

Under the power given to Davis, he had authority, as is contended for Very, only to receive the amount of the bond and mortgage in money, or to sell and transfer them, and no other authority whatever to agree to receive at a future day a payment in goods, and to bind his principal so to receive them,—no authority to substitute a new contract, by which Very must necessarily be a loser, and bind Very to its performance. From the pleadings and evidence, it is clear that Davis did not receive payment, in money or otherwise. Is it not equally clear that he did not sell and transfer the bond and mortgage? And in what part of the power can the authority be found for Davis to bind Very by a new contract, to be performed in future? The whole object of the power was to close up and put an end to his business in Arkansas, and not to entangle himself with new contracts, liabilities, and litigation, and which has been the result of the unwarrantable construction put on the power by Levy, and the unauthorized acts of Davis under it.

And it is a well-settled principle of law, and nowhere controverted, that if an agent exceed his authority his acts in such excess do not bind his principal. Taggart v. Stanbery, 2 McLean's Rep. 549; Planters Bank v. Cameron et al., 3 Smed. & Marsh. Rep. 613; Gordon v. Buchanan, 5 Yerg. Rep. 79; 2 Kent's Com. (1st ed.) 483; 3 Eng. (Ark.) Rep. 230; Wahrendorff v. Whitaker, 1 Missouri Rep. 148; 3 Stew. (Ala.) Rep. 26, 27; Fox v. Fisk, 6 How. (Miss.) Rep. 345; Fenn v. Harrison, 3 Term Rep. 759; Stewart v. Donnelly, 4 Yerg. Rep. 180; Thompson v. Stewart, 3 Conn. Rep. 183; 1 Hovenden on Frauds, 180; North River Bank v. Aymar, 3 Hill's (N. York) Rep. 266; Piatt v. Oliver, 2 McLean's C. C. R. 316; Story on Agency, § 165, 172.

This was a special authority to Davis, and not a general one, and...