Duluth News Tribune v. Smith
| Decision Date | 17 December 1926 |
| Docket Number | No. 25608.,25608. |
| Citation | 169 Minn. 356,211 N.W. 322 |
| Parties | DULUTH NEWS TRIBUNE v. SMITH et al. |
| Court | Minnesota Supreme Court |
Appeal from Municipal Court of Duluth; Richard M. Funck, Judge.
Action by the Duluth News Tribune against J. E. Smith and another, doing business as the Torch Light Lake Pavilion, to recover for advertising. From an adverse decision, defendants appeal. Affirmed.
Roderick Dunn, of Duluth, for appellants.
Goldberg & Cohen and C. G. Lindquist, all of Duluth, for respondent.
In 1924, Peter Grant, unmarried, lived at Port Arthur, Ontario. He owned a tract of about 35 acres in Carleton county, bordering upon Torch Light Lake. A considerable portion of the tract had been platted, which was referred to as "Torch Light Lake cabin sites." In the spring of 1923, Grant entered into an oral agreement with Smith to sell the property for him. This arrangement proved unsuccessful. In June, 1924, Grant executed a power of attorney, under seal, appointing Smith his attorney in fact to sell and convey such premises, etc. During the summer of 1925, Smith procured certain advertising, for the sale of such lots, in plaintiff's paper, amounting in the aggregate to $480.15, upon which he paid $67.15. This action is brought against both Grant and Smith to recover the unpaid balance.
The complaint charges that plaintiff furnished advertising to the defendants, who accepted the same, at the agreed price of $436.52, which amount defendants promised to pay; that payment thereof has been demanded and has not been made. Grant alleges in his answer that, if such advertising was contracted for, as alleged in the complaint, it was not done on his behalf. The defense of Smith is that he never, at any time, was engaged in business as the "Torch Light Lake Pavilion," or in partnership with Grant. He alleges that he personally contracted for the advertising, and that he is owing plaintiff therefor $413.
Appellants set forth eight assignments of error. The first two relate to an order denying a motion to amend the findings, which is not an appealable order. Assignments 4 to 8 are not for consideration, because such assignments relate to the rulings upon the admissibility and the striking out of testimony, and were not excepted to.
The decisive question in this lawsuit rests upon the construction to be given to the power of attorney. It is a well settled rule in the law of agency that a formal instrument, conferring authority, will be construed strictly, and can include only those powers which are expressly given and those which are necessary and essential to carry into effect those which are expressed. Harris v. Johnston 54 Minn. 177, 55 N. W. 970, 40 Am. St. Rep. 312; Gilbert v. How, 45 Minn. 121, 47 N. W. 643, 22 Am. St. Rep. 724, and list of cases cited in note 13, 21 R. C. L. 881.
Where the intention of the parties appears from the language employed in a power of attorney, such intention should prevail, and where the language will permit that construction should be given and carried out which will support the...
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