Conger v. Gruenig, 1253
| Decision Date | 05 May 1953 |
| Docket Number | No. 1253,1253 |
| Citation | 117 Vt. 559,96 A.2d 821 |
| Court | Vermont Supreme Court |
| Parties | CONGER v. GRUENIG et al. |
Alban J. Parker, Springfield, for plaintiff.
Miles & Ainsworth, Springfield, for defendants.
Before SHERBURNE, C. J., JEFFORDS, CLEARY, CUSHING, JJ., and HUGHES, supr. J.
This is an action of contract on a special declaration. The defendants pleaded the general issue. Trial was by jury with a verdict and judgment for the plaintiff against both defendants. The case is here on the exceptions of the defendants, jointly, and severally, to be admission of evidence and to the denial of their motion for a directed verdict.
Hattie M. Conger of Springfield died testate on November 17, 1950. The plaintiff is her surviving husband and the defendants are her grandchildren, her sole heirs and the legatees under her will. The suit is predicated upon a claimed express agreement between the plaintiff and the defendant Mrs. Gruenig, made in the latter part of May 1951, whereby, in consideration that the defendants would turn over or cause to be turned over to the plaintiff one third of the selling price of the house owned by the testatrix and occupied by her and the plaintiff at the time of her death, the plaintiff forbore the filing of a waiver of the terms of his wife's will. The value of the estate for distribution, after payment of expenses and the specific bequest of $3,000 willed to the plaintiff, but before payment of the transfer and inheritance taxes of $144.08, is $23,235.02 so that the share of each defendant under the will is roughly $12,500.
The defendants excepted to the admission in evidence of Exhibit 1, a power of attorney to the defendant Mrs. Gruenig from defendant Whaley dated January 15, 1951, because it was immaterial and did not give her authority to enter into or bind Whaley by any such contract as claimed by the plaintiff. The language of the instrument, so far as material here, is as follows:
'Whereas I desire my sister, Betty Whaley Gruenig, to act for me and in my name, place and stead in the settlement of the estate of my grandmother above-named now therefor for me and in my name, I do hereby appoint my sister Betty Whaley Gruenig as my true and lawful attorney in fact to act for me in the settlement of the estate of my grandmother, above-named, to ask, demand, sue for, recover, and receive of and from the administrator or administrators of my said deceased grandmother, all my distributive share of her, my said deceased grandmother's, personal estate and effects to which I am, by law or otherwise, entitled, as one of her next of kin, under the statutes for distribution of personal effects of intestates and upon receipt thereof, for me and in my name, to give good and effectual releases and discharges to the administrator or administrators of my said deceased grandmother, and also for me and in my name and to my use to settle and adjust with the said administrator or administrators any acts, agreements, or compositions in, about, or concerning my said distributive share or other matter or things in relation thereto, and all and whatsoever my said attorney shall lawfully do or cause to be done in or about the premises I do hereby ratify and confirm.'
When an agent is given special and limited authority he is bound to pursue it strictly. He cannot bind his principal in any act not warranted by the express authority delegated to him and what is necessarily incident thereto, that he may perform the act to which his agency applies. If the agent exceeds his authority, the principal is not bound and the contract, as to him, is void. A person dealing with such an agent is bound at his peril to know the extent of the agent's authority and is chargeable with knowledge of the limitation of the authority. White v. Langdon, 30 Vt. 599, 602; Goodrich v. Tracy, 43 Vt. 314, 320; Riley v. Wheeler, 44 Vt. 189, 194; Cleveland v. Pearl & Co., 63 Vt. 127, 131, 21 A. 261; Ferguson v. Phoenix Mut. Life Ins. Co., 84 Vt. 350, 361, 79 A. 997, 35 L.R.A.,N.S., 844; Vermont Marble Co. v. Mead & Eastman, 85 Vt. 20, 28, 80 A. 852. Here Mrs. Gruenig's authority was special and limited. She was authorized to act for her brother in the settlement of his grandmother's estate and to ask, demand, sue for, recover, receive, settle and adjust with the administrator of the estate. She had no authority, as Whaley's agent, to contract with the plaintiff and the contract claimed by the plaintiff was not necessarily incident to the authority Whaley had given her.
The plaintiff's declartion alleged that Mrs. Gruenig was attorney in fact for the defendant Whaley as to all matters of his interest having to do with the estate by virtue of the offered exhibit so it was material to that issue. But...
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...said Attorney shall do or cause to be done by reason hereof, ... POA (paper 24, att. 1) (italics supplied). 2. In Conger v. Gruenig, 117 Vt. 559, 561, 96 A.2d 821, 822 (1953), the Vermont Supreme Court, in construing a limited power of attorney granted especially for the express purpose of ......
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