Clinton v. Hibbs' Ex'x

• Decision Date: 29 February 1924
• Citation: 259 S.W. 356,202 Ky. 304
• Parties: CLINTON v. HIBB'S EX'X.
• Court: Kentucky Court of Appeals

259 S.W. 356

202 Ky. 304

CLINTON v. HIBB'S EX'X.

Court of Appeals of Kentucky.

February 29, 1924

Appeal from Circuit Court, Livingston County.

Action by J. L. Clinton against L. C. Hibb's executrix.Judgment for defendant, and plaintiff appeals.Affirmed.

Chas H. Wilson, of Smithland, for appellant.

C. C Grassham and L. B. Alexander, both of Paducah, for appellee.

THOMAS J.

On June 6, 1920, L. C. Hibbs, who was then a resident of Livingston county, executed a general power of attorney to his wife Lula Hibbs, which was in these words:

"I, L. C. Hibbs, being now infirm in health, and for that reason not being able to attend to my business affairs, do hereby appoint my wife, Lula Hibbs, as my agent and attorney in fact, and give her full authority to attend to all of my affairs, to sign checks and also execute any notes that she may deem necessary in the conducting of my affairs, and to transact all of my business during my illness, also to collect all moneys that may be due me, and to represent me in the partnership business in which I may be interested.This June 6, 1920.L. C. Hibbs."

It was acknowledged and duly recorded in the Livingston countycourt clerk's office.

On September 10 of the same year, C. M.

Nelson borrowed from the appellant and plaintiff below, J. L. Clinton, $2,000, and executed to him a note for that sum due 12 months thereafter, and payable at the First National Bank at Paducah, Ky.Mrs. Hibbs, as attorney in fact for her husband, signed the name of the latter to the note as surety for Nelson, and which was written by her in these words: "L. C. Hibbs by Lula Hibbs, attorney in fact."There were other sureties to the note, but they and Nelson, the principal, were or have since become insolvent, and this action was filed by plaintiff against Nelson and the other two sureties, and against appellee and defendant below, Mrs. Lula Hibbs, as executrix of her husband, who in the meantime had died a resident of Livingston county, and prior thereto had executed his will, in which he devised all of his property to his surviving wife and made her executrix thereof.Default judgments were taken against the defendants other than Mrs. Hibbs, as executrix of the will of her husband, but she filed answer, denying liability of her husband on the note, upon the ground that he was not a principal therein, and that his name was signed thereto by her as his attorney in fact only for the purpose of binding him as surety thereon; that he received no part of the consideration therefor, and that she, as his attorney in fact, by whom his name was signed thereto, had no authority from him in writing to do so, and it was also averred that the above general power of attorney conferred no such authority upon her as the appointed agent of her husband therein.Those defenses were controverted by a reply, and it also pleaded facts which counsel claims constituted an estoppel against L. C. Hibbs, as well as his widow as his sole devisee, from denying her authority to bind her principal as surety in the note under the general power of attorney given her.Appropriate pleadings made the issues, and upon trial, after evidence heard, the court sustained the motion of counsel for the executrix, and peremptorily instructed the jury to return a verdict in her favor, which was done, and plaintiff's motion for a new trial being overruled, he prosecutes this appeal from the judgment dismissing the petition as against the executrix.

It is argued for a reversal that the court erred (1) in assuming to construe the power of attorney when its construction, as claimed, should have been submitted to the jury; (2) that the court erred in construing it as not authorizing Mrs. Hibbs to sign the name of her husband to the note as surety, and (3) that the court erred in holding that the proven facts created no estoppel.Other contentions were made in the motion for a new trial, and to some extent argued in the brief, but we regard them as immaterial and of no consequence in view of the conclusions reached on the three contentions above enumerated, and which we will proceed to dispose of as briefly as possible.

In support of contention (1), reliance is had on the case of Meagher v. Bowling.107 Ky. 412, 54 S.W. 170, 21 Ky. Law Rep. 1149.The authority of the agent, who signed the name of his principal to the writing therein sued on, rested exclusively in parol.There was a dispute as well as contradictory evidence as to what that authority actually was, and the court very appropriately held that the issue of fact with reference thereto should be submitted to the jury under appropriate instructions, with directions, of course, for it to return a verdict in accordance with what it found to be the authority of the agent.It requires no argument to show that we have no such case here, since the authority of the agent is in writing, and there is and could be no dispute as to its terms.They are neither ambiguous, obscure, or inconsistent.Neither is there any reference to extraneous matters concerning which there is a contrariety of evidence, and there was therefore nothing to be submitted to the jury relating to the true interpretation of the power of attorney given by the deceased to his wife, who is now his executrix, and the proper construction of it, under such circumstances, is exclusively a question for the court, under numerous opinions of this court, as well as under the accepted general doctrine as recorded by all text-book writers upon the subject.9 Cyc. 591, 592;6 R. C. L. 862;Elliott on Contracts, vol. 2, §§ 1564, 1565;Lock & Ellison v. Lyon Medicine Co.,84 S.W. 307, 27 Ky. Law Rep. 1;Schuster v. Snawder,101 S.W. 1194, 31 Ky. Law Rep. 254;Lexington & Big Sandy Ry. Co. v. Moore,140 Ky. 514, 131 S.W. 257;Vincennes Bridge Co. v. Walker,181 Ky. 651, 205 S.W. 778;Crescent Stave Co. v. Brown & Millard,181 Ky. 787, 205 S.W. 937;andTexas Granite Oil Co. v. Williams,199 Ky. 146, 250 S.W. 818.It was therefore the exclusive province of the court in this case to construe the power of attorney and to determine therefrom the extent of the authority of the attorney in fact, and to have declined to do so and submit such matters to the jury would have been error.

The first thing to be observed in the discussion of contention (2) is that the power of attorney by its express terms gave to the wife "authority to attend to all of my [the principal's] affairs, to sign checks, and also execute any notes that she may deem necessary in the conducting of my [his] affairs, and to transact all of my business during my illness,"...