Bone v. Greenlee

• Decision Date: 30 April 1860
• Court: Tennessee Supreme Court
• Parties: R. B. BONE & BRO. v. SAMUEL B. GREENLEE.

41 Tenn. 29

R. B. BONE & BRO.

v.SAMUEL B. GREENLEE.

Supreme Court of Tennessee.

April, 1860.

FROM FAYETTE.

This cause was tried before Judge J. C. Humphreys, at the November term, 1859. The plaintiffs offered in evidence a power of attorney from defendant to his brother, which was rejected by the court. There was a judgment in favor of defendant. Plaintiffs appealed.

John D. Goodall, for plaintiffs in error.

Joel L. Pulliam, for defendant in error.

McKinney, J., delivered the opinion of the court.

There was an action of assumpsit for goods, wares, and merchandise sold and delivered by the plaintiffs to the defendant. The action was commenced by attachment, the defendant being a non-resident.

On the trial, verdict and judgment were rendered for the defendant, and an appeal in error to this court.

The plaintiff purposed to establish the account sued on by a promise to pay the same, made by E. E. Greenlee (the brother and agent of the defendant) in the winter of 1858; and to show the authority of the agent to make the promise, and its obligatory force upon the defendant, the plaintiff offered to read a ““power of attorney,” executed by the defendant on the 11th of December, 1858, in Burke County, North Carolina, constituting said E. E. Greenlee his agent and attorney in fact, for various purposes in Tennessee; and among others, as was assumed, to adjust and pay the account sued for.

The defendant objected to the reading of the power of attorney, on the ground “that it was not properly authenticated.” This objection was sustained by the court; to which the plaintiff excepted.

Whether or not the court erred in this ruling depends upon the construction to be given to the provisions of the Code upon this subject, the instrument having been executed and the suit commenced since it went into operation.

The power of attorney was acknowledged by the maker before the clerk of the Court of Pleas and Quarter Sessions of Burke County, North Carolina, which is shown to be a court of record. The “authentication” of the instrument is in conformity with the requirements of the Code in all respects (§§2038 to 2046 inclusive), except that the clerk's certificate of the acknowledgment does not pursue the formula prescribed by §2042; the important fact is not recited that the clerk was “personally acquainted” with the maker.

For the plaintiff, it is insisted that this provision is applicable alone to instruments made and acknowledged in this State, and...