Claflin v. Continental Jersey Works

• Citation: 11 S.E. 721,85 Ga. 27
• Parties: CLAFLIN et al. v. CONTINENTAL JERSEY WORKS et al.
• Decision Date: 12 July 1890
• Court: Supreme Court of Georgia

11 S.E. 721

85 Ga. 27

CLAFLIN et al. v. CONTINENTAL JERSEY WORKS et al.

Supreme Court of Georgia

July 12, 1890

Error from superior court, Chatham county; ADAMS, Judge.

Garrard & Meldrim, for plaintiffs in error.

C. N West, Denmark & Adams, Lawton & Cunningham, Jackson & Whatley, A. C. Wright, Charlton & Mackall, and Lester & Ravenel, for defendants in error.

SIMMONS J.

The errors assigned in the fifth to eighteenth (inclusive) grounds of the motion for a new trial go to the refusal of the court to give in charge to the jury certain principles of the law of agency which bear upon the question of the extent of Lichtenstein's authority. The requests may embody sound law, but it is immaterial whether they do or not. Where an agent's authority is conferred and defined in writing the scope or extent of such authority is a question for determination by the court. Mechem, Ag. § 104; 1 Thomp. Trials, § 1370; Berwick v. Horsfall, 29 Law J. C. P 193; Dobbins v. Manufacturing Co., 75 Ga. 238, 243; Pollock v. Cohen, 32 Ohio St. 514. As said by this court in the case above cited, (page 243:) "That it was the duty of the court to construe both the charter and the letter of attorney, and to determine the extent of power conferred by both and each of them upon the agent, we think is a plain proposition. Taken alone, and without proof of other circumstances to which it was necessary to resort to clear ambiguities or to explain doubtful intention, there was nothing for the jury to find. The question was purely and simply one of law, to which it was the exclusive right and duty of the judge to respond." In requesting charges upon the extent and nature of a general agency, there seems to have been an attempt by the plaintiffs in error to enlarge the authority of Lichtenstein beyond the limits of his power, or at least to establish the construction that the instrument created a general agency. If there was any such effort, the court did not err in defeating it. It is not allowable, by the adduction of extrinsic oral evidence, to add to the powers expressly given in the writing. The authority must be proved by the instrument itself. Neal v. Patten, 40 Ga. 363. The very purpose of a power of attorney is to prescribe and publish the limits within which the agent shall act, so as not to leave him to the uncertainty of memory, and those who deal with him to the risk of misrepresentation or misconception, as to the extent of his authority. To confer express authority is to withhold implied authority. There can be no parol enlargement of a written authority. Whart. Ag. § 225; Mechem, Ag. § 306; Reese v. Medlock, 27 Tex. 120; Batty v. Carswell, 1 Amer. Lead. Cas. 687, notes; Pollock v. Cohen, 32 Ohio St. 514. Besides, the power of attorney was relied upon throughout the whole transaction. The plaintiffs in error believed Lichtenstein's acts to be within the letter of his authority, having taken the advice of counsel in reference thereto, so that they cannot claim to have been misled by any appearance of authority other than that which the writing gives.

Did the court err in holding as matter of law that Lichtenstein exceeded his authority when he delivered the goods in dispute to the plaintiffs in error? We will look first at the character of that delivery. The contention of the plaintiffs in error is twofold. They say, first, that Weisbein, the principal, obtained credit, and bought goods from them, upon the faith of certain representations made by him which afterwards proved to befalse; that their agents, upon discovering the fraud, went to Lichtenstein, and demanded a return of the goods thus fraudulently procured; that there were returned to them the goods which they could identify as having been sold by them to Weisbein, and, to make up the balance of their claims, other goods were delivered to them by Lichtenstein; that, of the goods taken by Claflin & Co., about two-thirds had been identified as having come from that house, and, of those taken by Jaffray & Co., about one-half had come from the latter; and they now insist that, as to these portions of the goods at least, they should not be held liable, because Weisbein's title to them was avoided ab initio by their rescission of the sale. There can be no doubt that the agent violated his duty in admitting, upon an ex parte representation, that his principal had committed such wholesale fraud, especially when he knew so little of the latter's concerns as to be totally surprised on hearing of the outstanding indebtedness, and when he professed to have the intention of continuing the business. An agent cannot deny his principal's title. Code, § 2188. It cannot be said that the power of attorney was intended to or did confer the extraordinary authority of consenting to the rescission of past sales to the principal in the latter's absence, and by reason of his fraud. See Bradford v. Bush, 10 Ala. 386. But it may be said that such consent was not necessary; that the defrauded vendors had the right to pursue and take their goods wherever they found them, notwithstanding it was the agent's duty, as custodian of the property, to maintain the possession thereof. There would be more force in this, if these creditors had proceeded as for their own goods alone. A party cannot renounce a contract, and at the same time get a benefit under it. Thus, the rescinder cannot sue or take security for the price, and at the same time follow the goods. Bank of Beloit v. Beale, 34 N.Y. 473; Cobb v. Hatfield, 46 N.Y. 533; Joslin v. Cowee, 52 N.Y. 90; Thurston v. Blanchard, 33 Amer. Dec. 705, notes; Lloyd v. Brewster, 4 Paige, 537, 27 Amer. Dec. 88, and notes; Grant v. Law, 29 Wis. 99; Bridgeford v. Adams, 45 Ark. 136; 2 Pars. Cont. 813, 922, notes; 1 Benj. Sales, 569, note; 2 Warv. Vend. 878.

The second contention of the plaintiffs in error is that, if the attempted rescission was futile, still the transfer of the goods to them by Lichtenstein was valid, because he had authority, under the power of attorney, to pay the debts of his principal, and in lack of money he could pay in goods. This payment theory is more consistent with the facts of the case than the other one of rescission. It is apparent from the answers that the first intention of the agents of plaintiffs in error was to rescind the sales, and simply retake their goods, but, finding that this would leave a considerable balance of their claims undischarged, they acted as if the sales were to be confirmed, and demanded payment of both the matured and the maturing indebtedness therefor. Lichtenstein acceded to their demands, and in settlement with Claflin & Co. delivered to their agent goods aggregating about $14,000 in value, after making certain discounts, amounting to 24 per cent. from the cost prices as marked on the goods by Weisbein. To the agent of Jaffray & Co. were given goods in value near $3,000, after making similar discounts amounting to 9 per cent. It does not appear how much, if any, of the indebtedness to Jaffray & Co. was matured at the time payment was demanded; but it does appear that, of the indebtedness to Claflin & Co., only about $3,000 was then due, leaving about $11,000 on which the time of credit had not expired. It cannot well be disputed that Lichtenstein had no authority to anticipate and accelerate the payment of this $11,000, especially when he swears in his answer that he expected to continue the business. It is nowhere alleged that the amount owing to Jaffray & Co. was due, but all the circumstances indicate that it was not due, when Lichtenstein delivered the goods to their agent. This, therefore, was also an unauthorized payment. Beals v. Allen, 18 Johns, 363; Hampton v. Matthews, 14 Pa. St. 105. The writing in question expressly states its object to be a continuation of the business during the principal's absence. Nothing could be more foreign to this object than to surrender a large part of the stock in trade at the demand of creditors whose debts were mostly immature. That was clearly against the interests of the business, and in excess of the agent's authority.

But the acts of an agent are valid to the extent that they are within his authority. So the question arises whether the payment of some $3,000 of matured indebtedness to Claflin & Co. can be upheld. Lichtenstein was authorized "to collect all money or moneys due to me, and give proper receipts and acquittances therefor, and to pay all bills due by me to others for goods, merchandise, or otherwise." A formal power of attorney, being executed with deliberation, is subject to a strict construction. The general terms are restricted to consistency with the controlling purpose, and do not extend the authority beyond the special powers expressly delegated. Rossiter v. Rossiter, 8 Wend. 494; Reese v. Medlock, 27 Tex. 120; Holtsinger v. Bank, 6 Abb. Pr. (N. S.) 292; Ferreira v Depew, 17 How. Pr. 418; Hogg v. Snaith, 1 Taunt. 347; Attwood v. Munnings, 7 Barn. & C. 278; Esdaile v. La Nauze, 1 Younge & C. 394; Bank v. Aymar, 3 Hill, 262; Stainer v. Tysen, Id. 279; Batty v. Carswell, 1 Amer. Lead. Cas. 687, notes; St. John v. Redmond, 9 Port. (Ala.) 428; Scarborough v. Reynolds, 12 Ala. 252; Dearing v. Lightfoot, 16 Ala. 28; Rogers v. Cruger, 7 Johns, 557; Delafield v. Illinois, 26 Wend. 192; Story, Ag. §§ 21, 62-68; Whart. Ag. § 222; Ewell, Evans' Ag. 204 et seq.; Mechem, Ag. § 306; Verdell v. Ketchum, 52 Ga. 139; Pollock v. Cohen, 32 Ohio St. 514. Now, the writing in the present case expressly states its object to be a continuation of the business during the principal's absence. Lichtenstein was in trusted with the possession and management of the business for that purpose. This required him to take care of, and not sacrifice, the goods. His authority embraced using them so...