Milliken v. Coombs

• Decision Date: 01 October 1821
• Citation: 1 Me. 343
• Parties: MILLIKEN & ALS. v. COOMBS & ALS
• Court: Maine Supreme Court

1 Me. 343

MILLIKEN & ALS. v. COOMBS & ALS

Supreme Judicial Court of Maine, Hancock

October, 1821

DEBT on an arbitration-bond, dated March 1, 1815. There were several issues in the case, among which was that of non est factum.

To prove this issue on their part the plaintiffs produced the bond declared on, which appeared to be executed by James D Wheaton as the agent and attorney of the defendants, and to be made in virtue of a power given by the defendants to the attorney, dated January 9, 1815. To prove the attorney's authority, the plaintiffs gave in evidence a written power of attorney from the defendants to Wheaton, under seal, dated February 1, 1815, but which, it appeared, was executed on or about March 16, 1815.

It further appeared that the arbitrators, after having given due notice, met and fully heard the parties April 19, 1815, on which day they made and published their award. Several of the defendants were present before the arbitrators at the trial and they all appeared by their agent regularly constituted who managed the cause on their part; but no objection was made by any person to the authority of Wheaton to enter into the submission in behalf of the defendants.

The counsel for the defendants objected to this evidence as insufficient to support the bond as their deed; and in support of this objection they gave in evidence a written power of attorney under seal, from eight of the defendants to Wheaton dated January 9, 1815, in which all the defendants' names were recited, but four of them never executed it. This power embraced the same subject matter as the power dated February 1.

The Judge overruled this objection, and thereupon a verdict was returned for the plaintiffs, subject to the opinion of the whole Court upon the facts above stated.

Judgment upon the verdict.

Orr and Thayer, for the defendants, contended that the attendance of the defendants before the arbitrators could not avail to give validity to the bond, however it might operate to confirm an authority in pais. Here the power must be proved by deed, because the agent assumed to bind his principals by deed, at the time of the execution of which he had no authority. His act was completed before he was legally made the attorney of the defendants; and no power existing at that time to bind them, it is not their deed.

Greenleaf and Wheeler, for the plaintiffs, argued that the execution of the power on the sixteenth of March, bearing date February 1 was to be considered as a ratification, under seal, of all acts done by the agent pursuant to the tenor of the power, since February 1, agreeably to the maxim omnis ratihabitio, & c. Cady v. Eggleston, 11 Mass. 282.

OPINION

WESTON, J.

The only question in this case arises from the objection made to the sufficiency of the power of attorney, under the authority of which the arbitration bond was executed. It is urged that the power recited in the bond being described as bearing date January 9, 1815, that which was produced in evidence by the plaintiffs, bearing date February 1, 1815, can have no tendency to give effect to the bond; and this position is further attempted to be supported on the part of the defendants, by the production of a power of attorney, corresponding exactly in date with that recited in the bond, but which, though it purports to be the power of all the defendants, eight in number, was in fact executed by only four of them.

It may be convenient first to consider, whether if there had been no instrument of January, that of February could be received to support the bond, and secondly, if so, whether it is rendered inadmissible by the existence of the former power.

To give effect to the bond, as...