and interest in and to said contract so made between him and said Bash, Paul, and McCulloch, of which fact the latter at the time had knowledge; that said Simonton is made a party to said action to answer as to said assignment. Appellant further avers in said paragraph that on the 12th day of March, 1900, and within six months from the time of the execution of said contract, he requested said Bash, Paul, and McCulloch to convey to him said land according to the terms of said contract, and at said time offered, and was able, ready, and willing, to pay to them the balance of the purchase price therefor, but that said Bash, Paul, and McCulloch then refused to make said conveyance or to accept said offer, and still refuse so to do; that ever since said time appellant has been, and still is, able, ready, and willing to pay the balance of the purchase price of said land upon said appellees executing to him a conveyance therefor according to the terms of said contract; that on the 12th day of July, 1900, at the request of said Bash, Paul, and McCulloch, he paid to them the further sum of $500 in part payment of the balance of the purchase price of said lands, whereby the time of said contract was extended for a reasonable time thereafter, to wit, for a period of six months from said 12th day of July, 1900. It is further averred in said paragraph that he has duly performed all the conditions of said contract on his part to be performed; that on the 11th day of December, 1900, he tendered to said Bash, Paul, and McCulloch the balance due under it, to wit, the sum of $3,500, with interest thereon at the rate of 6 per cent. per annum from the 12th day of March, 1900, and requested them to convey said land to him according to the terms of said contract, which they refused to do; that said Bash, Paul, and McCulloch still refuse to accept said tender or to execute said conveyance, and appellant brings into court the balance due them under said contract, to wit, the sum of $3,675, and offers the same to them upon their executing and delivering to him a conveyance of said land according to the terms of said agreement, or a proportionate amount thereof for a conveyance of such portion of said land as they now own in fee simple as aforesaid. He further avers in said paragraph that said Bash, Paul, and McCulloch entered into an agreement with appellee Townsend, Reed & Co., a corporation, to convey said land to it, and, unless enjoined by the court from so doing, they will carry out such agreement; that at the time said corporation and said Bash, Paul, and McCulloch entered into said agreement, to wit, on November 28, 1900, said Townsend, Reed & Co. had full knowledge of the rights of appellant in said land; that said corporation intended to take said land for the benefit of, or to convey the same to, itself, George Townsend, William S. Reed, Charles C. Miller, and the Ft. Wayne &

Southwestern Traction Company, or some one or more of them; that said parties claim some interest in said land adverse to appellant; that all of said parties on said 28th day of November, 1900, at the time of making said agreement between said corporation and Bash, Paul, and McCulloch, knew of appellant's rights in said lands; that said Townsend, Reed, Miller, and Ft. Wayne & Southwestern Traction Company are made defendants to the action to answer as to their interest in said land; that, at the time they made said contract with said Simonton, said Bash, Paul, and McCulloch were, and still are, married men. The prayer of this paragraph of complaint is that said Bash, Paul, and McCulloch be required to accept said sum of $3,675 so tendered to them, and to execute and deliver to appellant a deed for said land within a time prescribed by the court, or, upon their failure so to do, that a commissioner be appointed for that purpose; that he recover possession of said land; that his title thereto be quieted; that all the other defendants thereto, except Simonton, be enjoined and restrained from accepting a conveyance of said land from said Bash, Paul, and McCulloch, or from entering upon the same; that in case said Bash, Paul, and McCulloch do not own all of said land in fee simple, the court ascertain what portion thereof they do own, and its value; that they be required to execute a conveyance for such portion thereof, or, upon their failure to execute such a conveyance, in which their wives shall join, within a time fixed by the court, that a commissioner be appointed to make a conveyance of such portion; that the value thereof and the value of the interest of the wives of said Bash, Paul, and McCulloch therein, be ascertained; that the court determine what portion of the money so paid into court by appellant said Bash, Paul, and McCulloch are entitled to receive; that they be compelled to accept the same, etc. Each specification of the assignment of errors presents the same question. The difference in the two paragraphs of complaint is not a material difference.

In Ikerd v. Beavers, 106 Ind. 483, 7 N. E. 326, the supreme court, by Mitchell, J., said: "It is essential to the jurisdiction of a court of equity, to enforce the performance of a contract, that certain qualities should be found inherent in the contract itself. Besides being complete and definite, it must belong to a class capable of being specifically enforced, and be of a nature that the court can decree its complete performance against both parties without adding to its terms. The contract must be fair, just, and equal in its provisions, and the circumstances must be such at the time the court is called upon to act that to enforce it would not operate to the oppression of the person against whom its enforcement is asked. Moreover, it must appear that the plaintiff has no adequate remedy at law, and that to refuse to perform

the contract would be a fraud upon him." The contract declared upon in the case at bar creates an agency requiring personal service. The relief for a breach of such a contract is confined to an action for damages. The remedy is an adequate one at law. Thiebaud v. Furniture Co., 143 Ind. 340, 42 N. E. 741; Norris v. Fox (C. C.) 45 Fed. 406; Schwier v. Zitike, 136 Ind. 210, 36 N. E. 30: Karrick v. Hannaman, 168 U. S. 328, 18 Sup. Ct. 135, 42 L. Ed. 484. Whatever may have been the facts as regards the situation of the parties to the contract, the language of the contract can bear but one interpretation. The proposition begins, "We propose to secure for you," etc. This involves both personal service and agency. Again, appellees do not, by the contract, purport to own the real estate which they propose to secure, and the complaint shows upon its face that they did not own all of such real estate. The idea of personal service is still further emphasized, and the right to specific performance upon the part of appellant still further removed, by the provisions of the contract that, if appellant defaulted, the damages were fixed at $500. Appellees could not by an equitable action compel appellant to accept a deed for the real estate described in the contract. The contract further requires the doing of something in the future, and falls, we think, within the rule announced in Louisville, N. A. & C. R. Co. V. Bodenschatz-Bedford Stone Co., 141 Ind. 263, 39 N. E. 707, where Monks, J., speaking for the court, said: "The general rule is, when the consideration on the part of the plaintiff is the doing of something in the future, which the court cannot compel, or when by its terms the contract stipulates for a succession of acts, where performance cannot be consummated by one transaction, but will be continuous and require protracted supervision, specific performance will be refused." We know of no rule of law that would compel a specific performance of the contract declared on. It is a very different contract from one which obligates a party to convey certain described real estate, which the contract recites is the property of the party agreeing to convey. We find no error. Judgment affirmed.

(29 Ind. App. 144)

WHITE et al. v. FURGESON. (Appellate Court of Indiana. May 23, 1902.) INTOXICATING LIQUORS-APPLICATION FOR LICENSE-RIGHT OF REMONSTRANCE-METHOD OF EXERCISE-AGENCY-POWER OF ATTORNEY-SUFFICIENCY DEFINITION-RULE OF CONSTRUCTION.

1. A power of attorney is an instrument by which the authority of one person to act in the place and stead of another as attorney in fact is set out.

2. In construing powers of attorney, the usual rules of construction of written instruments apply, according to which the obvious meaning of the terms used should not be unnecessarily restricted or extended by implication; and the 64 N.E.-4

intention of the parties, as ascertained by the language used, must govern the construction of the instrument, and determine the extent of the authority conferred.

3. Under Burns' Rev. St. 1901, § 72831, making it unlawful for the board of county commissioners to grant any license to sell intoxicating liquors in any township, etc., where a written remonstrance, signed by a majority of the legal voters of such township, is filed, pursuant to the act, against the granting of such license, the right of remonstrance may be exercised through an attorney in fact duly appointed by power of attorney for the purpose.

4. A power of attorney, executed by legal voters of a township, appointing an attorney in fact to remonstrate, pursuant to Burns' Rev. St. 1901, § 72831, against the granting to "any applicant" therefor of a license for the sale of intoxicating liquors in the township, and to file such remonstrance "successively against each of such applicants by name" who may apply, conferred no discretion upon the attorney as to what applicants he should remonstrate against; the words "any applicant," as used, being equivalent to "any and all applicants," against whom the attorney, by acceptance of the power, impliedly agreed to remon

strate.

5. Where a power of attorney executed by legal voters of a township appoints an attorney in fact to remonstrate, pursuant to Burns' Rev. St. 1901, § 7283i, for them and in their names, against the granting of liquor license to "any applicant" therefor, and to remonstrate "successively against each of such applicants by name" who may apply, a remonstrance filed by such attorney pursuant to such power will have the same effect in any particular proceeding for license as if signed and filed by such voters in person; the reference to any particular applicant by the general description including all applicants being sufficient to authorize the attorney to remonstrate against the particular applicant.

Appeal from circuit court, Jackson county.

Application by George H. Furgeson for a license to sell intoxicating liquors. From a judgment reversing an order of the board of county commissioners refusing the license, the remonstrators against the granting of the license appeal. Reversed.

D. A. Kochenour, for appellants.

WILEY, J. This cause was transferred from the supreme court. Appellee applied to the board of commissioners of Jackson county for a license to sell intoxicating liquors at retail under the provisions of the act of 1895. Notice of his intention to apply for license was given, and the application was made to the July session, 1900, of said board. June 28th and 29th certain remonstrances against the granting of such license were filed in the auditor's office. Upon these remonstrances the board of commissioners refused the license and dismissed the application. From this action of the board, appellee appealed to the court below. Upon appeal, appellee, over the objection and exception of the remonstrators, was permitted to amend his application by inserting therein the words "on the first floor." With the insertion of these words, the description of the room where the liquors were to be sold was as follows: "In the front room on the first floor of the story and a half frame building situated on" a certain

lot (describing it). In the circuit court, demurrers were addressed to the application and remonstrance and overruled. Appellants also moved the court to strike out the amendment which appellee was permitted to make to his application. The cause was submitted to the court for trial, resulting in a general finding for appellee that he was entitled to have issued to him a license as prayed for in his application. Appellants moved for a new trial. Their motion was overruled, and judgment pronounced on the finding.

All the rulings adverse to appellants to which reference has been made are assigned as errors, but the real question presented by the record may be considered and decided under questions presented by the motion for a new trial.

There were 263 names signed to the remonstrance, and it was admitted upon the trial that those whose names appeared thereon were a majority of the legal voters of the township in which appellee was seeking a license to sell intoxicating liquors, and that the remonstrance was timely filed. Of these 263 remonstrators, 36 signed the remonstrance in person, and the remaining 227 signed by their attorneys in fact. The trial court held the remonstrances filed by the attorneys in fact were inoperative, and refused to admit them in evidence. While the remonstrance may be considered as a whole, it was in fact filed in two parts, by two separate attorneys in fact. We are confronted with this naked and important proposition: Can legal voters who are authorized to remonstrate against the issuing of a license to any applicant to sell intoxicating liquors at retail delegate that authority to another, by regularly constituting him their agent, by executing to him a power of attorney? An answer to this inquiry must be decisive of any debatable question presented by the record, and settle a question in which the public in general is interested. This is the first time that a question of this exact character has reached a court of last resort in this state. We have therefore no "ancient landmarks of the law" to guide us, and must reach a conclusion as one of first impression.

So much of section 9 of the act of 1895 as is pertinent to the right of a legal voter to remonstrate is as follows: "If, three days before the regular session of the board of commissioners of any county a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county shall be filed with the auditor of the county against the granting of a license to any applicant for the sale of spirituous, vinous, malt or other intoxicating liquors under the law of the state of Indiana, with the privilege of allowing the same to be drunk on the premises where sold, within the limits of said township, or city ward, it shall be unlawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period

of two years from the date of the filing of such remonstrance." Section 72831, Burns' Rev. St. 1901. It is quite clear that this statute gives the right to any legal voter in the township or ward where the applicant desires to sell to remonstrate against the grant. ing of a license to "any applicant." No ground or reason for remonstrating is required. It is a simple right conferred upon the legal voter by the legislature, in restraint of the liquor traffic, and such right of remonstrance has nothing whatever to do with the fitness of the applicant. If a majority of the legal voters remonstrate, it becomes a prohibition to granting a license. By this provision of the statute the legislature did not intend to enlarge the right of local self-government, but to put it in the power of the majority to exercise such right, which is an inherent right under the constitution, and in popular government. The statute having given to the legal voter this right, can he dele gate such right to another by a properly executed power of attorney? This depends, to some extent, at least, upon the instrument delegating the power.

The several powers of attorney, as shown by the record in this case, are identical, except as to names, and, that their full purport may appear, we append a copy of one, as follows:

"Power of Attorney. Know all men by these presents that the undersigned, being each and severally a legal voter of Owen township in Jackson county, state of Indiana, does, each for himself, severally, hereby nominate, constitute, and appoint Isaac Fish, who is a resident and legal voter of said township, his true and lawful attorney in fact, for him, and, in his name, place, and stead, to execute, sign, and place on file with the auditor of said county his remonstrance in writing against the granting of a license to any applicant, by name, for the sale of spirituous, vinous, malt, or other intoxicating liquors under the laws of the state of Indiana, with the privilege of allowing the same to be drunk on the premises where sold, within the limits of said township, and in like manner to execute and file such remonstrance against any one, by name, who shall give notice as required by law of his intention to apply for such license as aforesaid within said township. And the undersigned, each and severally, hereby authorize and empower said Isaac Fish to execute as aforesaid a general remonstrance for him as aforesaid, and as provided in section 9 of an act of the general assembly of the state of Indiana approved March 11, 1895 (Acts of 1895, page 351), against any person whomsoever who may give notice as required by law of his intention to apply for license as aforesaid to sell intoxicating liquors as aforesaid at any point whatever in the limits of said township, and successively against each of such applicants, by name, who may give notice as aforesaid. And the undersigned, each for himself, and

severally, hereby doth ratify and confirm each and every act which his said attorney shall lawfully do as herein authorized, binding himself hereby in as full and ample a manner as he himself could do were he personally present and did the same; reserving, always, the power of revocation, within the limits of the statute aforesaid. In testimony whereof, the undersigned, each for himself, has set his hand and seal this 27th day of December, 1899."

Of the three powers of attorney, the first was executed December 27, 1899; the second and third, January 30, 1900.

It must be conceded that there is no statutory authority giving the right to a legal voter to delegate to another, by letter of attorney, the right to sign his name to a remonstrance. If the right exists at all, it must rest upon the inherent right of one person to appoint or constitute another his agent to do a particular thing. Much of the business of the world is transacted by agents, or through agencies, representing their principals. It is a rule recognized by all the authorities that the acts of the agent, within the scope of his employment, are the acts of his principal, and the latter is bound by them. In the case we are now considering, all persons whose names appear on the remonstrance had the right, under the statute, to remonstrate against the application of appellee to sell intoxicating liquors in the township where they resided. Instead of exercising that right in person, they elected to confer upon others the power to represent them, and sign the remonstrance in their names. The language of the powers of attorney is so plain that it needs no construction. It is manifest that the persons executing them intended to confer upon their respective attorneys in fact the continuing authority, until that authority should be revoked, to remonstrate in their names against the granting of a license to "any applicant" who might apply for such license under the statute. The attorneys in fact are not given any authority to discriminate in favor of or against any applicant. A general power is granted simply to remonstrate against any applicant, and each successive applicant. It might be well, in this connection, to inquire as to the character and nature of a power of attorney, and it may be defined as: "A power or letter of attorney is an instrument by which the authority of one person to act in the place and stead of another as attorney in fact is set forth." 18 Am. & Eng. Enc. Law (1st Ed.) p. 871; Hunt v. Rousmanier, 8 Wheat. 174, 5 L. Ed. 589; Porter v. Hermann, 8 Cal. 620. In the latter case it was held that all attorneys in fact are agents, and that by "attorneys in fact" are meant persons who are acting under a special power created by deed. So we see that it is, as above suggested, largely a question of agency. The rules governing the construction of written instruments generally are re

sorted to in construing powers of attorney. 18 Am. & Eng. Enc. Law (1st Ed.) p. 871. The obvious meaning of the terms used is not to be restricted or extended by implication in the absence of necessity. Wood v. Goodridge, 6 Cush. 117, 52 Am. Dec. 771; Johnston v. Wright, 6 Cal. 375; Davidson v. Dallas, 8 Cal. 227; Blum v. Robertson, 24 Cal. 129; Wright v. Ellison, 1 Wall. 16, 17 L. Ed. 555; Very v. Levy, 13 How. 345, 14 L. Ed. 173. Another well-supported rule relating to powers of attorney is that the intention of the parties, as ascertained by the language used, governs. Peckham v. Lyon, 4 McLean, 45, Fed. Cas. No. 10,899; Insurance Co. v. Wilcox, 57 Ill. 180; Gould v. Bowen, 26 Iowa, 77. In Lamy v. Burr, 36 Mo. 85, 88 Am. Dec. 135, it was held that the intention of the party giving the power should in all cases govern the construction to be given to, and determine the extent of, the authority. In Hemstreet v. Burdick, 90 Ill. 444, it was held that, where the intention fairly appears from the language employed, that intention must control. By the powers of attorney in this case, each of the persons executing it nominated, constituted, and appointed a designated resident and legal voter of the township where he resided his attorney in fact, to do what? To act "for him, and, in his name, place, and stead, to execute, sign, and place on file * * * his remonstrance in writing against the granting of a license to any applicant, by name, for the sale of spirituous, vinous, malt, or other intoxicating liquors * * within the limits of said township, and in like manner to execute and file such remonstrances against any one, by name, who shall give notice as required by law of his intention to apply for such license * * * within said township, and successively against each of such applicants, by name, who may give notice," etc. From this language there can be no doubt as to what the parties intended by appointing an attorney in fact to exercise a right or privilege which the statute conferred upon them. That right was a continuing one, and as long as they remained legal voters of the township they could exercise such right. The language is too plain for construction. The phrase "any applicant," used in the first instance, is emphasized and made plain by the later expression, "and successively against each of such applicants," etc. Instead of exercising such right in person, they elected to delegate such right to their attorneys in fact, and conferred upon them the continuing right to remonstrate, in their stead and names, against any applicant, "and each successive applicant," until such power should be revoked. Under the terms of these instruments, there was no election conferred upon the attorneys in fact, in the exercise by them of their own judgment and wishes in the premises. They had no right to elect to file a remonstrance against one applicant, and refuse to file against another; but it

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