Commonwealth v. Hawkins
| Decision Date | 06 October 1885 |
| Citation | 7 Ky.L.Rptr. 238,83 Ky. 246 |
| Parties | Commonwealth v. Hawkins, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM FRANKLIN CIRCUIT COURT.
P. W HARDIN, ATTORNEY-GENERAL, FOR APPELLANT.
1. In construing the power of attorney the intention and not the letter must control. (Schultz v. Johnson, 5 B. M., 499; Meriwether v. Lewis, 9 B. M., 168.)
2. As the covenant of indemnity to the former sureties and the covenant to the State are separate and distinct, the latter may be enforced even though the former be void because the agent exceeded his authority in including it in the bond. (Vanada's Heirs v. Hopkins, 1 J. J. M., 294.)
JOHN W RODMAN FOR APPELLEES.
1. The power of attorney did not authorize the agent to execute a bond containing a clause of indemnity to the sureties in the old bond.
2. A special agent does not bind his principal unless his authority is strictly pursued and those dealing with him are chargeable with notice of its extent. (Dunlap's Paley's Agency, 202; 2 Kent's Com., 620; Story on Agency, sections 21, 126; 1 Am. Leading Cases, 560, and note 8 Wendell, 494; Thompson v. Stewart, 3 Conn. 171; 15 Johns., 44; 18 Johns., 363; Batty v. Corswell, 2 Johns., 48; DeHart. & c., v. Wilson, & c., 6 Mon., 580; 4 J. J. M., 456; Ross v. Davis Ibid., 386; Craycroft v. Selvage, & c., 10 Bush, 709; Craighead v. Peterson, 72 N. Y.; Wood v. Goodridge, 6 Cush., 117; Attwood v. Munnings, 7 B. & C., 278; Hubbard v. Elmer, 7 Wend., 446; Hodge v. Combs, 1 Black, 192; Draper v. Rice, 56 Iowa 114.)
3. The act of the agent is regarded as a whole, and can not be separated. It must be good for all it purports to be, or good for nothing. (DeHart, & c., v. Wilson, & c., 6 Mon., 580; Park v. President and Managers of S. & L. Turnpike Road Company, 4 J. J. M., 456.)
4. As to what is necessary to bind one as surety. (Billington v. Commonwealth, 79 Ky. 401.)
W. LINDSAY ON SAME SIDE, IN PETITION FOR REHEARING.
1. The intention is to be gathered from the words of the writing. There can be no construction or interpretation of words which mean nothing.
2. It is not a question of mere intention upon the part of the surety when he is sought to be bound. ( Billington v. Commonwealth, 79 Ky. 400.)
3. The power of attorney ought to be as certain as the bond to be executed pursuant to it. (Trumbow v. Aldrich, 8 N. H., 31.)
4. The bond upon which appellant seeks to recover was taken at the instance, and for the benefit, of the dissatisfied sureties. It is but a single undertaking, and must be wholly good or wholly bad. (General Statutes, chapter 100, section 25; Ibid., chapter 104, sections 1, 2, 3, 4, 5, 6 and 7; Commonwealth v. Adams, 3 Bush, 41; Bartley v. Fraine, 4 Bush, 375; DeHart v. Wilson, 6 Mon., 577.)
5. The county court saw, or should have seen, that the bond offered was not the bond authorized by the power of attorney to be executed. (Bracken County, & c., v. Daum, 80 Ky. 388.)
6. If the signature of Berry's name to the bond upon which appellant seeks to recover was unauthorized, then the bond does not correspond with the paper accepted by the county court, and no recovery can be had upon it against any of the obligors therein. (Fletcher v. Leight, Barrett & Co., 4 Bush, 303.)
The sheriff of Franklin county on December 11, 1880, executed his bond for the collection of the State revenue for 1881, with John W. Jackson, R. D. Armstrong, and others as his sureties. At the June term, 1881, of the Franklin County Court the two sureties above-named made a motion, upon due notice, requiring the sheriff to give a new bond, and to indemnify them in their said suretyship. An order was entered requiring the sheriff " to execute a new bond, conditioned for the collection of the State revenue of said county for the year 1881, and for indemnity to said R. D. Armstrong and John W. Jackson for any loss, cost or damage legally incurred by them by reason of their suretyship in the bond executed by said E. O. Hawkins, as sheriff aforesaid."
The order further recites, that " said E. O. Hawkins, together with Hiram Berry (and others, naming them), his sureties, entered into and acknowledged a covenant to the Commonwealth of Kentucky, conditioned for the collection by said Hawkins, as sheriff of Franklin county, of the State revenue of said county for the year 1881, and for indemnity to R. D. Armstrong and J. W. Jackson for any loss, cost or damage legally incurred by them by reason of their suretyship in the bond executed by said Hawkins as sheriff of said county with them and others as sureties, dated December 11, 1880."
The bond approved by the order stipulates, " that the said E. O. Hawkins, as sheriff, shall well and truly collect, account for, and pay over to persons entitled to receive the same according to law, the revenue and public dues of the county of Franklin for the year 1881, and that he shall, when called upon by the Auditor, settle his accounts and pay over the amount, if any, of public money in his hands belonging to the Commonwealth; and that the said E. O. Hawkins shall in all things well and truly demean himself and perform the duties of collector of the State revenue of said county; and we further covenant to indemnify J. W. Jackson and R. D. Armstrong against any loss or damage legally incurred by them by reason of their suretyship in the bond executed by E. O. Hawkins as sheriff of Franklin county, with them and others as sureties, dated December 11, 1880."
It was signed as to the appellee Berry, " Hiram Berry by Ira Julian, attorney in fact," by virtue of a power of attorney, which reads thus:
" I, Hiram Berry, of Franklin county, Kentucky, do hereby authorize and empower Ira Julian to sign and deliver for me and in my name as surety for E. O. Hawkins on three bonds--
1st. A bond for the collection and payment of the State revenue of Franklin county for the year 1881, and also to indemnify any liability of said Hawkins on his bond executed the 11th December, 1880, against any loss or damage by reason of the suretyship thereon.
2d. A bond for the faithful discharge of the duties of said Hawkins, as sheriff on the aforesaid bond, and also to indemnify any of his sureties on his official bond executed December 11, 1880, against any loss or damage by reason of their suretyship thereon.
3d. A bond for the collection of the county levy for Franklin county, and payment of all sums collected by said Hawkins as sheriff, to the proper authorities, and to indemnify any surety on his previous bond, executed the 11th December, 1880, against any loss or damage by reason of the said suretyship.
This June 1, 1881.
HIRAM BERRY."
To this motion by the State, upon the bond executed June 6, 1881, for a deficit of $5,051.87 of the State revenue, the appellee Berry presented a plea of non est factum, based upon the ground that the power of attorney from him did not authorize the execution of the bond, or, in other words, that the bond contained a covenant of indemnity to the sureties, Jackson and Armstrong, which was not authorized by the power of attorney; and that, therefore, he was in no way liable upon the bond.
The sole question is the sufficiency of the power of attorney. The learned special judge who tried the cause below held, upon demurrer, that the answer was sufficient, and dismissed the motion as to Berry; and our regard for his opinion has caused us to hesitate as to the conclusion which we have reached. But to our minds it is the only one consistent with both reason and law, and it must, therefore, be adopted.
The language in the first clause of the power of attorney, and which relates to the execution of the State revenue bond, is: " And also to indemnify any liability of said Hawkins on his bond."
This, if interpreted literally, means nothing. Neither Hawkins, owing to his being the principal, nor " any liability" could be indemnified.
The intention of the parties and not the letter must control in the...
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