Stokes v. Dewees

• Decision Date: 14 March 1904
• Docket Number: 31-1904
• Citation: 24 Pa.Super. 471
• Parties: Stokes, Appellant, v. Dewees
• Court: Pennsylvania Superior Court

24 Pa.Super. 471

Stokes, Appellant, v. Dewees

No. 31-1904

Superior Court of Pennsylvania

March 14, 1904

Argued January 14, 1904

Appeal by plaintiff, from order of C.P. Luzerne Co.-1902, No. 275 making absolute rule for judgment but restricting lien thereof, in case of Jonathan O. Stokes, Assignee of Alexander Crow, Jr., High Sheriff of the County of Philadelphia, v Thomas B. Dewees and Walter W. Lance.

Rule for judgment for want of a sufficient affidavit of defense.

The opinion of the Superior Court states the case.

Error assigned was the order of the court.

Frank P. Slattery, with him Joseph A. Slattery, for appellant. -- The learned judge below, in his opinion, concedes that the language of the letter of attorney is susceptible of two constructions, and he rules in favor of the one which restricts the powers. It is respectfully submitted that this ruling is not in accord with the authorities: Wharton on Agency, sec. 223; Foster v. Rockwell, 104 Mass. 167.

J. A Opp, for appellee. -- All powers of attorney receive a strict interpretation, and the authority is never extended by intendment or construction beyond that which is given in terms, or is absolutely necessary for carrying the authority so given into full effect: Campbell v. Foster Home Association, 163 Pa. 609; MacDonald v O'Neil, 21 Pa.Super. 364; Union Trust Co. v. Means, 201 Pa. 374; Devinney v. Reynolds, 1 W. & S. 328; Lauman v. Young, 31 Pa. 306; Craighead v. Peterson, 72 N.Y. 279.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

SMITH, J.

This is an action on a replevin bond given by Thomas B. Dewees and Walter W. Lance to Alexander Crow, Jr., sheriff of Philadelphia county, and by the latter assigned to Jonathan O. Stokes. The bond was executed for Walter W. Lance by his attorney in fact Charles Lance, under a power of attorney, the material part of which is as follows: " For me and in my name to enter security and become bail for any purpose in which bail or security may be needed or required and pledge properties 113 and 115 West Penn Street in Germantown, City of Philadelphia." The bond, with the power of attorney, and the breach of condition, are set out in full in the declaration as the ground of the plaintiff's demand. On a rule for judgment for want of a sufficient affidavit of defense against Walter W. Lance, he replies: " That said Charles Lance, attorney as aforesaid, exceeded the powers given him in writing, and did not in any way or manner, limit or restrict the said bond or the liability of said defendant thereon to the said property, but if said attorney did execute a bond, as appears by the copy filed, it is a general bond and does not confine or restrict the pledge to the said properties, named in the power of attorney. That said attorney exceeded his powers, definitely given in writing, and the defendant is advised and believes that he is not in any way or manner liable on the bond in suit, and further that the bond is informal and that no affidavit is necessary in this case."

The court entered judgment for the plaintiff restricting its lien and collection by the following order: " Let judgment be entered in favor of the plaintiff and against the defendants for the amount claimed in the statement, with a restriction that both its lien and collection, so far as the defendant Walter W. Lance is concerned, shall be confined to the real estate designated in the power of attorney as Nos. 113 and 115 West Penn Street, in Germantown, City of Philadelphia." The learned judge further said in an opinion accompanying the order: " While technically there is no such thing now as a pledge of real estate, the word pledge being exclusively confined to personal chattels, I take it that the language used expresses an intent upon the part of Walter W. Lance to confer upon his attorney-in-fact the power to offer the properties mentioned, as the source from which there is to be collected any liability which the said Lance may incur by reason of entering security and giving bail. This means something different from the power to lien the properties for the purpose mentioned, with a restriction of the lien to them, leaving a personal liability which may be collected out of other properties, and is in...