Bowles v. Rice

• Decision Date: 13 June 1907
• Citation: 57 S.E. 575,107 Va. 51
• Parties: BOWLES et al. v. RICE et al.
• Court: Virginia Supreme Court

57 S.E. 575

107 Va. 51

BOWLES et al.

v.RICE et al.

Supreme Court of Appeals of Virginia.

June 13, 1907.

1. Principal and Agent — Authority of Special Agent—Duty of Third Person to Ascertain Authority.

Persons dealing with a special agent cannot rely upon his assumption of authority, but must inform themselves of the extent of his powers.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 528-530.]

2. Same—Implied Authority.

The powers of a special agent are to be strictly construed. He possesses no implied authority beyond what is indispensable to the exercise of the power expressly conferred, and must keep within the limits of his commission.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 248, 249.]

3. Same—Construction of Power of Attorney.

The terms of a power of attorney to a special agent expressly prescribing a cash sale must be rigidly observed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent §§ 249, 344.]

4. Same — Execution of Contract Under Power of Attorney—Exceeding Authority.

An agent was empowered by written authority to sell, within 30 days, certain timber for $1,100 cash, the principal agreeing to execute a proper deed to the purchaser and to allow 2 years for its removal. The next day the agent entered into an agreement with a purchaser in consideration of $1,100, payable 28 days from date, by which the agent sold him "all timber of every character and description" on the principal's farm, "with the usual rights as to facilities for cutting, sawing, and hauling said timber and the lumber made therefrom." Held, that the agent exceeded his authority by selling on time, and by authorizingthe location of a sawmill on the premises to cut the timber.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 353-355.]

5. Customs and Usages — Pleading — Evidence.

The fact that the privilege of sawing timber into lumber is a customary consequence of its sale must be proved by satisfactory evidence, and it is not sufficient to simply set it up in the answer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Customs and Usages, §§ 41-46.]

6. Same—Knowledge of Parties.

Knowledge of the existence of a custom must be brought home to the parties to be affected thereby, unless the evidence shows that it is so uniform and notorious at the place where the parties reside as to raise a prima facie presumption that they knew of it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Customs and Usages, §§ 23, 24.]

Appeal from Law and Equity Court of Richmond.

Action by Bowles and others against Rice and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Conway R. Sands and W. D. Cardwell, for appellants.

A. B. Dickinson, A. L. Holladay, and R. R. Florance, for appellees.

WHITTLE, J. This appeal is from a decree adverse to the plaintiffs in a suit to set aside a sale of standing timber made by a special agent, W. D. Rice, to the appellee E. J. Thomas, and afterwards assigned by Thomas to the appellees Taliaferro & Co., to enjoin the buyers from cutting and sawing timber upon plaintiffs' premises, and for other relief.

By written authority Rice was empowered to sell, within 30 days from September 1, 1905, the timber on the plaintiffs' farm for $1,100 cash; the plaintiffs agreeing to execute a proper deed to the purchaser, and to allow 2 years for its removal. Subsequently a power of attorney was prepared (which the plaintiffs declined to sign), authorizing Rice, upon the same consideration, to sell all timber "eight inches and over across the stump, " and granting the purchasers the privilege, while cutting and sawing that timber, "of sawing logs brought from near-by tracts."

On September 2, 1905, Rice entered into an agreement with Thomas, in consideration of $1,100, payable 28 days from date, by which he sold him "all timber of every character and description" on the plaintiffs' farm, "with the usual rights as to facilities for cutting and sawing and hauling said timber and the lumber made therefrom."

The sole question demanding our consideration is whether Rice, who was confessedly a special agent acting under a written power, exceeded his authority in making the foregoing agreement with Thomas.

The law applicable to the case is clear and well settled. A special agent is defined to be one "who is authorized to do one or more specific acts in pursuance of particular instructions, or within restrictions necessarily implied from the act to be done." 1 Am. & Eng. Enc. L. 985. Persons dealing with such agent do so at their own risk, and cannot rely upon his assumption of authority, but must inform themselves of the extent of his powers.

The rule is thus stated in Stainback v. Read, 11 Grat. 281, 286, 62 Am. Dec. 648: "It is equally well settled that a party dealing with an agent acting under a written authority must take notice of the extent and limits of that authority. He is to be regarded as dealing with the power before him; and he must at his peril observe that the act done by the agent is legally identical with the act authorized by the power"; citing Story on Agency, § 57 et seq.; Atwood v. Munnings, 7 Barn. & Cress. 278; Bank v. Aymar, 3 Hill (N. Y.) 262; Hewes v. Doddridge, 1 Rob. 143; 1 Am. L. C. 392, notes. See, also, Silliman v. Fredericksburg, etc., Ry. Co., 27 Grat. 119; Blair v. Sheridan, 86 Va. 527, 10 S. E. 414; Davis v. Gordon, 87 Va. 559, 13 S. E. 35; Simmons v. Kramer, 88 Va. 411, 13 S. E. 902; Halsey v. Monteiro, 92 Va. 581, 24 S. E. 258; Dyer v. Duffy, 19 S. E. 540, 39 W. Va. 148, 24 L. R. A. 339.

It is also settled law that the powers of a special agent are to be strictly construed. He possesses no implied authority beyond what is indispensable to...