AGENCY.

OF THE APPOINTMENT AND POWERS OF AGENTS. OF THE SEVERAL KINDS OF AGENCIES. AGENCIES SPECIAL AND GENERAL, OR EXPRESS AND IMPLIED.

BATTY v. CARSWELL AND CARS WELL.

In the Supreme Court of New York.

NOVEMBER TERM, 1806.

[REPORTED, 2 JOHNSON, 48-50.]

Where A. authorized B. to sign his name to a note for $250, payable in six months, and B. put A.'s name to a note for that sum payable in 60 days, it was held that A. was not liable. A special authority must be strictly pursued.

THIS was an action of assumpsit on a promissory note, alleged to have been made by the defendants. The note was dated the 23d of October, 1801, for the payment of $250, in 60 days. Plea non assumpsit. The cause was tried at the Washington circuit, on the 18th of June, 1806, before Mr. Chief Justice KENT.

On the trial, the subscribing witness to the note swore, that two or three weeks previous to the date of the note, David

Carswell, one of the defendants, applied to Abner Carswell, [*536 the other defendant, to be his surety to the plaintiff, on a note for $250, payable in six months, which he consented to do, and directed the witness to sign his name to such a note. A few days afterwards, and before the note was made, David Carswell told the witness, that he had informed Albert Carswell, that he should not want the money of the plaintiff, as he could do without it. The witness, with the assent of David Carswell, for whom he acted as clerk and agent, but without the privity of Abner Carswell, signed the note on which the present action is brought, and for which David Carswell received the amount.

It appeared, that Abner Carswell had admitted, in conversation, that he had authorized the other defendant to use his name to a

note for $250, for the purpose of procuring that sum of the plaintiff, but that he was told by David Carswell, that he should not want the money, and did not know that the note had been so given, until some time afterwards. The note was then offered to be read in evidence, but objected to by the defendants' counsel, because it had not been proved to have been signed by the defendants; but the objection was overruled. The defendants' counsel then moved for a nonsuit, which was refused. The judge charged the jury, that if they believed the note was made before David Carswell had told the other defendant, that he should not want the money, the plaintiff would be entitled to recover, otherwise, they ought to find for the defendants; but that those were facts on which they were to decide. The jury found a verdict for the plaintiff.

A motion was now made for a new trial, unless the court should think proper to grant a nonsuit.

Foot, for the defendants, urged the same objections as were made at the trial.

Crary and Russell contra, contended, that when an agent acts within the general scope of his authority, the principal would be bound though the agent should exceed his authority.(1) There was an authority to sign a note for $250, for 60 days, which was not revoked. The information given by David Carswell, did not amount to a revocation of the authority by Abner Carswell. Long acquiescence, after knowing the note to have been made, is strong presumptive evidence of authority. There is an implied assent; and subsequent assent is sufficient evidence of authority. Boulton v. Hillesden, Comberback, 450.

*LIVINGSTON, J., delivered the opinion of the court. This *537] was a special power, and ought to have been strictly pursued.(2) But the note, to which Abner Carswell authorized the witness to put his name, was to be payable in six months, whereas the one he signed had only sixty days to run. The note, then, as far as it concerned Abner, admitting there was no revocation, was made without his authority. His confession, after the suit was commenced, does not alter the state of the case. It was merely

(1) Fenn et al. v. Harrison et al., 3 Term, 760; Boulton v. Hillesden, Comberbach, 450. (2) Fenn et al. . Harrison et al., 3 Term, 762.

that he had allowed David to put his name to a note. This must have been the one of which the first witness speaks, which was to be payable in six months. There must be a new trial, with costs to abide the event of the suit.

New trial granted.

PECK AND ANOTHER v. HARRIOTT AND ANOTHER.

In the Supreme Court of Pennsylvania.

SEPTEMBER, 1820.

[REPORTED, 6 SERGEANT AND RAWLE, 146–151.]

If any agent, empowered to contract for sale, sell and convey land, enter into articles of agreement, by which it is stipulated, that the vendee shall clear, make improvements, pay the purchase money by instalments, &c., and on the completion of the covenants to be performed by him, receive from the vendor, or his legal representative, a good and sufficient warranty deed, in fee, for the premises, the receipt of the agent for such parts of the purchase money as may be paid before the execution of the deed, is binding on the principal.

In the Court of Common Pleas of Crawford county, to which this was a writ of error, the following case was stated for the opinion of the court, to be considered as a special verdict.

Gad Peck and Jared Shattuck, on the 17th October, 1815, executed a power of attorney, by which they authorized Seth Young, to contract for sale, sell, and convey, any parts or parcels of certain lands, of which they were seized, lying in the counties of Erie, Crawford, Warren, and Venango; confirming and ratifying all that their said attorney should do in the premises, by virtue of the said power of attorney.

*In pursuance of this power, Young, on the 29th De[*538 cember, 1815, entered into articles of agreement with James Harriott and Daniel Le Fevre, for the sale of two parcels of land lying in the county of Crawford, for the sum of $578.12, payable in four equal annual instalments, with interest; the first payment to be made December 29th, 1816. The vendees were to

erect on the premises, a dwelling house, in which they were to reside at least five years; to clear and improve at least five acres for every hundred acres contracted for, and to pay all the taxes which might thereafter become due on the premises. It was further agreed, "that upon payment of the whole, or a satisfactory part of the money and interest, within the terms aforesaid (the improvements aforesaid being also completed), the party of the first part (the vendors), or their legal representatives, would execute to the party of the second part, their heirs, and assigns, a good and sufficient warrantee deed, in fee, for the said premises, free of any expense, provided such party should, on the giving of said deed, give bond and mortgage on the said premises for the consideration moneys aforesaid, or so much as may remain due thereof."

On the 22d March, 1817, the vendees paid $30, and on the 5th of the following April, the further sum of $346.50, to Young, by whom a receipt, in the name of his principals, was endorsed on the article.

This suit being brought for the whole of the purchase money, the question was, upon the validity of the payments made to the agent. The court below were of opinion, that they were valid, and the plaintiffs excepted to their opinion.

Selden and Baldwin, for the plaintiffs in error.

The agency of Young was for a special purpose, and where that is the case, the general rule is, that the power is to be construed strictly. It was limited to contracting for sale, selling, and conreying, and did not extend to the receipt of the purchase money. A power to receive, is not incident to a power to sue; so a power to convey, is not incident to a power to sell; nor is a power to receive the purchase money, incident to a power to convey; because it is not necessary to the execution of the principal power. In the present instance, no conveyance has been executed, and the agree ment was, that the money should be paid to the principal.

Forward, for the defendants in error.

All powers necessary to carry the principal power into effect, are incident to it.(1) Young had power to make conveyances, which in the usual form acknowledge the receipt of the purchase money, and therefore he must have power to re

*539]

(1) 1 Livermore on Agency, 105.

ceive the purchase money. Indeed, it is not denied that if the money had been paid down, and a conveyance executed, the agent's receipt would have been good. Why then should it not be so, for part of the purchase money? The power was not fully executed by the articles of agreement; the money was paid by instalments, and the same rule which would authorize him to receive the whole, would authorize him to receive those instalments.

DUNCAN, J., delivered the court's opinion.

Every general grant implies the grant of all things necessary to the enjoyment of the thing granted, without which it could not be enjoyed. Every general power necessarily implies the grant of every matter necessary to its complete execution. An attorney who has power to convey, has so essentially the power to receive the purchase money, that a voluntary conveyance, without receiving the stipulated price or security for it, would be fraudulent, and either the whole contract might be rescinded by the principal, or the vendee liable for the purchase money. The principal authority includes all mediate powers which are necessary to carry it into effect. The payment of the purchase money was an intermediate act between the articles and the conveyance. The receipt of the purchase money is within the general scope of an authority to sell and convey, as a mediate power, as an act without which the conveyance would be fraudulent. No words could confer a more ample authority than is conferred by this instrument. He has power to contract for sale, and having so contracted, to convey. All the acts he performs, necessary in the premises, are ratified and confirmed.

I cannot yield to the argument, that, having contracted for sale, his power ended, because the language of the power is very explicit, that he has not only power to enter into executory contracts, but, that having entered into them, he has power to execute them by conveyances, and we must not stop at the words contract for sale, and say, that is a distinct power, but must go on with. the whole sentence, sell and convey. Articles are the first step usual in the sale of lands; the conveyance the last act which the attorney is authorized to perform. If he had conveyed on the receipt of the whole purchase money, it is admitted that this would have bound the principal. If he had power to receive the whole, he had power to receive any part, and it surely lies not in the mouth of the principal to say, that because he has not con

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