Boord v. Strauss

• Decision Date: 01 June 1897
• Citation: 39 Fla. 381,22 So. 713
• Court: Florida Supreme Court
• Parties: BOORD v. STRAUSS et al.

22 So. 713

39 Fla. 381

BOORD v. STRAUSS et al.

Florida Supreme Court

June 1, 1897

Error to circuit court, Orange county; John D. Broome, Judge.

Assumpsit by Joseph Strauss and others, partners as M. Ferst's Sons & Co., against H. A. Boord. There was a judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. The authority of an agent with power to execute negotiable instruments is confined to the making of such paper in the legitimate business of the principal, or for his benefit, and does not extend to the making of a note in his principal's name for the benefit of, or as security for a third person.

2. The authority of an agent to execute negotiable instruments in the name of his principal will be held to be conferred only in those cases where it is expressly given, or where it is a necessary incident of the character bestowed upon the agent.

3. An agent having the general control and supervision over all the principal's lands, including the power to prevent trespasses, and to collect and compound damages for trespasses or waste committed thereon, and to sell and convey the same; to ask, demand, sue for, collect, receive, and give acquittances for debts, including mortgages and rents due the principal; to institute, prosecute, appeal, defend discontinue, or nonsuit all legal and equitable proceedings for or against his principal in respect of any goods chattels, debts, demands, or things whatsoever; and to employ counsel to assist the agent in these matters,--is not thereby expressly or impliedly authorized to execute in the name of his principal a note to secure the debt of a third person.

COUNSEL

L. D. Browne, for plaintiff in error. Defendants in error (plaintiffs below) brought an action of assumpsit against R. Curry and plaintiff in error (defendant below), the declaration filed in the circuit court of Orange county on January 2, 1893, containing the usual common counts, and in addition a special count 'For that on April 27, 1892, the said defendants, by their promissory note, now overdue, promised to pay to the order of the plaintiffs, three months after date, the sum of two hundred dollars, but did not pay the same, though requested to do so.' The instrument referred to filed as the cause of action with the declaration was dated April 27, 1892, for the principal sum of $200, due three months after date, and signed: 'R. Curry. H. A. Boord, by J. G. Welsby, Atty. in Fact.'

To this declaration plaintiff in error pleaded separately that 'he never made or signed the promissory note referred to in this action as and in the manner therein alleged, and that he never authorized or empowered any person or persons whomsoever to make or sign the said promissory note for him, or on his behalf.' Issue was joined on this plea March 30, 1893, and at the spring term, 1893, the case was tried, resulting in a verdict for plaintiff by direction of the court. The only evidence before the jury was the testimony of J. G. Welsby, the cause of action under the special count, and the power of attorney identified by Welsby. Welsby testified that the signature to the note, 'H. A. Boord, by J. G. Welsby, Atty. in Fact,' was made by him; that he executed the paper as attorney in fact for Boord; that the note was given by witness in that manner as a guaranty for an amount due by Curry to Ferst & Co.; that Ferst's agent, Ben Harn, was pressing Curry for payment of a debt of $270 due by him to Ferst; that witness had taken possession of Curry's goods for Boord under a bill of sale; that Harn threatened to take legal proceedings to collect the debt, and Curry told Harn if he would reduce the debt to $200, and give him time, he would pay it; Harn saw witness' power of attorney, and said if witness would sign as attorney for Boord he would take a note; that witness, acting under the power of attorney, and from a desire to protect the goods in his hands from legal proceedings, signed the paper sued upon. The power of attorney referred to was in this language:

'Know all men by these presents that I, Henry A. Boord, late of the county of Orange, state of Florida, but now residing in the city of New Orleans, state of Louisiana, have made, constituted and appointed, and by these presents do make, constitute, and appoint, Johnson G. Welsby, of Orlando, county of Orange, state of Florida, my true and lawful attorney, for me and in my name, place, and stead to ask, demand, sue for, collect, receive, and give acquittances for all sums of money, debts, and demands whatsoever due and owing, or which may hereafter become due and owing, to me by any

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