Ish v. Crane (13 Ohio St. 574, 1862)

Sutliee, C.J.

The petition filed in the court of common pleas of Wood county, by Jacob Ish, states that on the 16th day of August, 1844, Samuel Crane, then living in Eayette county, Ohio, was the owner of the northwest quarter of section 17, in township 7, north of range 12 east, of land situate in Wood county, Ohio; and that being desirous of selling said land he wrote to James La Eerry, of Perrysburg, in said Wood county, the following letter:

“ PleasaNt Township, Eaireield County, 1 “ August 16,1844. i

“ My Rear Cousin James: — I never recéived your kind favors until this month, not being in town often, and not expecting a letter, consequently it lay in the office till advertised. You tell me that there is a chance of selling my land if I would take some trade, 6r that I could have a part improved for the other part. Considering my present afflicted state of body, I would rather sell the land than otherwise. You inform me that land is low in that county, and that land has been sold in an adjoining section at $3 per acre. I would not like to take less than $500 for the quarter; that would be a little more than $8 per acre. Rather than take less I would sooner give a part of the land to have the other part improved ; say sixty acres, reserving one hundred for myself. I would be very glad, James, if you would sell my land. I am anxious to ¡sell. Do try to sell, if you can, and I will satisfy you for it'. I want you to do the best you can for me, for I am poor and needy. I want, if you can sell, to write and tell me on what conditions you can sell it, and what kind of pay or payment you can get, and also what amount of improvement might be done for sixty acres of land. Do write soon and let me know.

“ (Signed,) Samuel Orame.”

The petition further states, that, in the early part of the year 1845, La Ferry, as agent of said Samuel Crane, entered into a written contract with the plaintiff to sell him half of said quarter section at the agreed price of $250, both parties being then ignorant of the death of Samuel Crane, but which had, in fact, occurred on the 28th day of December, 1844, leaving the defendants, then minor children, his heirs. That by the terms of said contract the plaintiff was to have possession of said lands so sold to him, which were wild and unimproved, and to pay the said purchase money — $50 in hand and $200 as soon as a good deed of the land in fee simple shoqld be executed and delivered to him — and that said La Ferry, at the same time, received the $50 and gave the plaintiff possession of the lands.

The petition further states, that on the 9th day of August, 1845, James Trimble, who was the guardian of the heirs of Samuel Crane, tendered to the plaintiff a deed of the land executed by himself, as such guardian, purporting to convey the land in fee simple to the plaintiff, and demanded the purchase money. That having some doubts as to the deed conveying a perfect title, the guardian and the plaintiff called upon a lawyer at Perrysburg for legal advice, and were advised that the deed of the guardian was sufficient to vest a good title in the plaintiff; and from such advice, supposing the deed to convey a perfect title to him in said land, and that the guardian was entitled to demand and receive the remainder of the purchase money, the plaintiff paid to him the said sum of $200 called for by the contract, and accepted the deed, which was, in fact, insufficient to convey the title. That the plaintiff continued in undisputed possession of the land, ignorant of the defects of the deed; until in April, 1855, and had then made improvements thereon of the value of $700 or upward, and had paid taxes to the amount of $83, when he received notice from Peter C. Benadum, the guardian of said heirs, to quit possession of said land.

The petition further states, that the money so paid by the plaintiff was all, or nearly all, expended by their guardian for the clothing, education and support of said minor heirs; and that they had not sufficient other means for their support; and that if they had not had the benefit of the money so paid by the plaintiff said land would necessarily have been sold for their support.

The petition further states, that the defendants, as heirs of said intestate, shortly after said notice by their guardian, commenced suit in the court of common pleas of said Wood county to recover possession of said land, and $50 damages for their detention.

The plaintiff prays an injunction against the defendants’ further proceeding to recover possession, and'that they be respectively required by the decree of the court, as they arrive at the age of majority, to execute to the plaintiff suitable deeds of conveyance of said land in fee simple.

To this petition the defendants demurred, and the court of common pleas sustained the demurrer, and gave judgment for the defendants. '

To reverse that judgment the plaintiff filed his petition in error in the district court, and the case was therein reserved to this court for decision, and was heard in this court and judgment rendered at its December term, 1858, reversing the judgment,of the court of common pleas (see 8 Ohio St. Rep. 520), and the case was remanded to the court of common pleas, for further proceedings.

. The minor defendants thereupon, by their guardian ad litem, answered that “ they deny each and every allegation of plaintiff’s petition.” The answer is subscribed by their guardian, hut not sworn to.

Emily Crane, one of the heirs, answers, denying that La-. Ferry was authorized to contract for the sale of the land, and ■denies that the heirs of Samuel Crane received the benefit of the purchase money paid by the plaintiff for the land.

It is also stated, in a supplemental answer, that the defendants have paid a large amount of taxes on the land, to-wit: one hundred dollars ; and ask, in case a decree be rendered for the plaintiff, that an account be taken, etc.

Upon hearing in the court of common pleas, a judgment was rendered for the plaintiff, and the defendants appealed the case to the district court, and on hearing in that court the case was again reserved to this court for final decision.

The case was heard in the court of common pleas upon the following agreed statement of facts, signed by the counsel of both parties, and filed with the papers in the case, and now with the pleadings:

“ It is admitted in this case, for the purposes of the trial, that all the allegations of fact in the petition stated, are true, except the authority of La Ferry to make the sale of the 'lands in the petition described, and, as to that fact, the genuineness of the letter attached to the petition is admitted; its sufficiency as authority to make such sale being submitted to the court as a matter of law. February 27,1860.”

The certificate of reservation, sent up with the papers from the district court, shows that when the case came on for hearing in that court, on the 7th day of June, 1860, on the foregoing agreed statement of facts, it was on that day reserved for hearing in this court, and certified to this court, June 27, 1860.

There is now found, with the papers filed in and belonging -to this case, a paper neither filed in the case nor proved, of the following tenor :

Jacob Ish, Plaintiff v. John Crane et al, Defendants.

PeRhysbüRGH, August 27, 1860.

The plaintiff, Jacob Ish, and his attorney, John H. Reid, Esq., will take notice that I am instructed by the defendants. and in accordance therewith, do now revoke, withdraw and annul the stipulation or admission, in writing, made by me, as such attorney, without consultation with my clients, for the purposes of the trial, on the 27th of February, A. D 1860, and that we will not permit the same to be used on the further trial of this cause; but do consent that plaintiff may take depositions to prove the disputed issues of fact, on giving the usual notice therefor, at any time prior to the 1st day of December, A. D. 1860, the defendant to have like leave to take depositions to rebut or meet the testimony taken by plaintiff, for twenty days after the close of plaintiff’s testimony ; the defendants do not withdraw the admission of the genuineness of the letter attached to plaintiff’s petition.

(Signed) “ James Mubray, Att’y of Defendants.”

This paper is indorsed as follows : “ Received this notice August 27, 1860, at 7 o’clock, A. M., and served the same by delivering a true copy to John H. Reid, attorney for Jacob Ish, August 27, 1860, 8 o’clock, A. M. C. W. Norton, sheriff ; by J. B. Spafford, deputy.”

It is insisted by counsel of defendants that, by virtue of this paper, dated August 27, 1860, now in this court, placed among the papers, the agreed statement of facts upon which the case was submitted in the district court, and reserved to this court, is annulled; and that the case is to be regarded by this court as if the agreed statement of facts were withdrawn from the files, and that the case is to be decided barely upon the pleadings.

The counsel of plaintiff, on the other hand, has argued the case, and seems to rely fully upon the agreed statement of facts.

How then is this agreed statement of facts to be regarded; •as revoked, or still in operation upon the parties ?

It has long been the practice- in this state, as well as in the courts of other states, for counsel to mutually agree upon •a state of facts, and to reduce the agreement to writing, and file it in the case, instead of being to the trouble and expense •of taking proof by depositions, or otherwise, to show the facts. And when such agreement is reduced to writing and signed by the parties, or their counsel, and filed in the case, I think the general understanding, both of the bar and court, has been that the same was to be regarded, until set aside by the court, as a special verdict of a jury, expressing the result of the proof made by both parties, and so belonging to both parties, that neither party could withdraw the same.

It is not doubted that, in case of an agreed statement having been so made and filed by mistake, or misapprehension of the-existing state of facts by one of the parties, he might, consistently with fair practice, upon notice to the adverse party or his counsel, apply to the court for leave, on the ground of such mistake or misapprehension, to withdraw from the files such agreed statement, or such part thereof as was, in fact, untrue, and had been so assented to by mistake or misapprehension. And upon the merits of such motion being sustained by proof, satisfactory to the court, it is not doubted the court might grant such relief as the party should show" himself justly entitled to.

But no application has-been made to the court in this case for leave either to withdraw or amend the agreed statement of facts. It has not been proved, or even stated, that the statement so filed and made part of the record, is not a true and fair exposition of the facts of the case. Nor is there any evidence before us that either Jacob Ish or his counsel had ever been served with notice that opposite counsel proposed to recede from his agreed statement. The word “ sheriff,” affixed to the name “ 0. W. Norton,” and “ deputy ” to the name of S'pafford, obviously add nothing to the character of the paper. Indeed, neither the names Norton or Spafford, appear on the. record as officers of the lower courts, and they are strangers-in this court. The writing which purports to be a return is,, therefore, in no sense to be regarded as an official return of an officer of court. The agreed statement of facts must then, be regarded obligatory and in full force upon the parties.

The case, therefore, by this agreed statement of facts, upon which it was submitted and reserved, presents for our consideration the same questions as when before us, and decided •upon demurrer at the December term, 1858. 8 Ohio St. Rep. 520.

When the case was before us upon demurrer, it was not insisted upon, by counsel for the defendants, that the letter •did not, upon its face, authorize La Ferry to sell and give possession of the land, in the manner he did; but counsel relied entirely upon the death of Samuel Crane, as a revocation of the authority conferred by the letter.

But the counsel of defendants now insist upon both points :

1. That the letter of Samuel Crane conferred, by its terms, no .authority upon La Ferry to make the contract of sale and give possession of said lands to Jacob Ish, as stated in the petition.

2. That the death of Samuel Crane, prior to the making of the contract and giving possession by La Ferry, revoked all authority conferred by the letter, and rendered utterly void the acts of La Ferry, so done by him as agent of Crane.

In addition to the views expressed heretofore when this case was before us (8 Ohio St. Rep. 524), I propose to consider both the foregoing propositions, now argued and submitted for our consideration by counsel.

Let us, then, in the first place, recur to the letter, and consider whether, by its terms, La Ferry was authorized to sell the land for cash, and give possession of the same.

The material parts of the letter, on this point, are the following:

“ My Deab CousiN James. * * * You tell me there is a chance of selling my land, if I would take some trade, or that I could have a part improved, for the other part. Considering my present afflicted state of body, I would rather sell the land than otherwise. You inform me that land is low in that county, and that land has been sold in an adjoining section at $3 per acre. I would not like to take less than $500 for the quarter; that would be a little more than $3 per- acre ; rather than take less, I would sooner give part of the land to have the other part improved, say sixty acres, reserving one hundred for myself. I would be very glad, James, if you would sell my land.' I am anxious to sell; do try to sell, if you can, and I will satisfy you for it. I want you to do the best you can for me, for I am poor and needy, I want, if you can sell, to write and tell me on what condition you can sell it, and what kind of pay or payment you can get, and also what amount of improvement might be done for sixty acres of land. Do write soon, and let me know.”

The fact of an agency, it is said, may be proved, not only by proving an express authority given to the alleged agent„but also by showing circumstances from which the authority must necessarily, or may reasonably, be inferred. And an agency, so constituted, may be either special, general, or universal. It may be to make a particular contract, to buy or sell certain specified property upon specified terms; or to buy or sell certain property generally, and the same a? to the performance of any business ; or, the agency may be a universal agency — to do, generally, any, and all business.

In this case, if the agent is to be regarded as eontroled by the valuation of the property, expressed by the principal,, the agency was special; if effect is to be given to the expression — “ I am anxious to sell, do try to sell if you can, I will satisfy you for it; I want you to do the best you can for methe agency would have to be regarded as a general one.

It is, however, quite immaterial whether the agency be here regarded general or special, inasmuch as Crane, in the letter, proposed to take “ a little more than $3 per acre,” and such price as to bring him $500, for the quarter section. And at that price — such price as would bring five hundred dollars for the one hundred and sixty acres — it was, that the writer of the letter urged an immediate sale in the language — • “ I am anxious to sell; do try to sell, if you can. I will satisfy you for it. I want you to do the best you can for me, I am poor and needy;” and, under these instructions, the sale of one half the land was in fact made for cash, and at the full price per acre, fixed by the owner.

There is much in the letter expressive of the wishes of the writer for the earliest possible sale of the land, and ot bis reliance upon bis cousin to make such sale, if practicable. The willingness expressed, if it could not be sold for money, to exchange or sell part of it for improvements to be made on the remaining part, seems to have been in his mind only a possible necessity, in case no sale for cash could be effected, without first making improvements. The sense of the instruction given, as expressed by the letter is — I authorize and request you to sell my land as soon as practicable at five hundred dollars, which is a trifle over three dollars per acre. Sell as soon as possible, for I am in need. The last paragraph of the letter, evidently contemplates a possible inability, on the part of La Ferry, to make any cash sale as requested, and a necessity to sell part of it, and take the payment in work and labor on the remainder of the lands; or to sell for some other property, or on other conditions; and in such a case, Samuel Crane, after having made known his urgent desire for an immediate cash sale, concludes his letter by saying, he wanted La Ferry to write him on what conditions, and for what pay, or for what amount of improvements the land could be sold. But this request for information from La Ferry, was only in case of a necessity to sell for different pay or different price than that for which the agent was already instructed and urged to make prompt sale; and so the writer adds to his request, that La Ferry should, in such a case write — “ what kind of pay or payment” he could get, and “ what amount of improvement might be done for sixty acres of land ”— all which Crane evidently solicited and expected only in case the land could not be sold for cash, at the price per acre that he had directed in the preceding part of the letter.

There is nothing, indeed, in the closing paragraph relating to a sale for other pay than money, or some possible shift in case the land could not be sold for money, as desired, to at all qualify the plenary instruction given to sell, if practicable, for cash; and in selling, to do the best he could for the principal in view of present infirmity, poverty, and necessity — all mentioned, apparently, to stimulate the agent to prompt action in making the sale.

“ Agency,” says Chancellor Kent, “ is founded upon a contract either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, by which that other assumes to do the business, and to render an account for it” 2 Kent’s Com. 784. The authority of the agent to contract for the principal, rests upon the consent of the principal; and such consent may be shown to have been given by the principal either before or after the transaction by the agent And this ground of liability of a principal for the acts of an agent, is very briefly and correctly indicated by the maxim of the Roman law — “ Qui mandat ipsefeeisse videtur."

But in this case Crane did not barely say in his letter to his cousin, I consent for you to sell my land for me as well as you can; I value it at $500, etc.; but the writer adds to his request that his friend should make sale of the lands, as we have seen, the most pressing considerations for the most prompt execution of the agency.

Under such plenary authority and pressing request from Crane to act as his agent in making sale of the lands, La Eerry shortly after receiving the letter, found an opportunity to sell half the land for all money, $50, in hand, to relieve the old man’s present need, and $200, to be paid on receipt of the deed; and sold and gave possession to Ish, and forwarded the $50 to Crane, whose representatives received it. And, no one, I think, can read the letter of the old man — . containing, as it does, the simple graphic representation of his infirmities and needy condition, and his pressing importu-nities to La Eerry, to make sale of his lands, and doubt that had Samuel Crane been living, he would not only have expressed his assent, but also his thanks, for the sale and remittance so made by La Ferry, in answer to his letter. Indeed, when this case was before this court upon demurrer, raising all the questions of law now presented, as before remarked, it was not understood that counsel of defendants seriously questioned the sufficiency of the letter to authorize such a sale by La Ferry as agent, had the principal been living at the time of making the sale. But as the question is now made of the sufficiency of the letter, we have thought proper to consider more fully the authority conferred by the terms of the letter; and I think it can not be successfully disputed that the letter does, by its terms, clearly authorize such a sale and giving possession of the land, as was made by La Ferry to the purchaser; so that the sale would have been as obligatory upon the principal had he lived, as if made by himself.

This leads us to the main question in the case — did the unknown death of Crane previous to the execution of the agency by La Ferry, render void the acts done under the apparent authority conferred by the letter ?

A large number of cases are cited by counsel of defendant to show that the weight of authority is against the former holding of this court. It would be a tedious task to remark at length upon each of the cases referred to. Both the English and American cases were referred to and commented upon at considerable length when this case was formerly before the court, and our remarks upon the authorities then introduced, and for the most part the same as he again cited, will be found in the report of that decision, 8 Ohio St. Rep. 520.

The general rule that the acts of the agent depend for their validity upon the authority with which he is invested by the principal at the time he assumes to act for him, was then, as it is now, fully recognized. But that decision proceeded upon the ground that where an agent had been constituted and invested with authority to act for the principal, and third persons thus invited by the principal to accredit him as such agent, transactions on the part of such persons with the agent, in good faith, within the scope of his agency, and in ignorance, or without either express or implied notice of the revocation of the authority, are generally binding. If the revocation, without such notice be express, and made by the principal in his lifetime, such acts of the agent are binding on the principal; but if the revocation is one merely resulting by operation of law, as by the bankruptcy, lunacy, coverture or death of the principal, then such acts, so done in good faitb and in ignorance of such event (except such acts as must necessarily be done in the name of the principal), are binding on his representatives. A majority of the court in that case-held that under such circumstances, and to such extent, the-transactions of the agent within, the scope of his agency, were as binding upon the representatives of the principal as-would have been,the same acts, if done before such revocation of the agency by the death of the principal, had in fact occurred.

In that opinion it was conceded that it had been held by highly respectable authority that while this rule prevailed in Scotland, and generally throughout the continent of Europe, it never, in fact, obtained as a rule of the common law; but it was, at the same time, in the opinion insisted that there-was equally high and respectable authority for affirming that the .rule really existed at common law, as well as under the civil law. And to justify the application of the rule in that case it was only necessary then to show that it was doubtful whether the rule did not, in fact, obtain at common law. And unless it can be shown- beyond a reasonable doubt that this just and equitable rule was not recognized at common law, it will not be pretended that this court ought to recede from its former holding in that regard.

The importance of the question and the high respect entertained for the opinions of my brethren, who are unable to concur in the opinion of the majority of the court, together with some additional authorities introduced by counsel, seem to invite a somewhat careful review of our former opinion upon this question.

Among the authorities favoring the proposition as the common law doctrine recognized in England, I referred to the following: Coke on Lit. sec. 66; Wynne v. Wynne, 7 Mod. Rep. 503, and reported also in Wil. 563; 6 East Rep. 356; The King v. Corporation of Bedford Level, cited by Chancellor Kent, or referred to in his Commentaries, vol. 2, p. 646, as authority for denying that the doctrine prevails in English law. Also, Shipman v. Thompson, Wil. Rep. 103,. mote, referred to by Chancellor Kent. I also cited Russell on Fact, and Brok., p. 817, as follows: “ Again, tbe death of the principal will operate as a revocation of the authority,”' etc. “ But where the factor or broker has authority to do an-ací in his own name, then it would seem that the death of'the principal will not if so facto determine such authority.” Also} to the same effect, Chitty on Com. and Manuf. 233. I also cited from Chitty on Contracts, 19, the following: “ And it is said that a sale or purchase by an agent, even after the-death of his principal, if made without notice of the fact, will bind the representatives of the latter.” I had supposed at the time it was an English text, but I have since heard that it is an American edition, and the same language is not found in the English edition of that work.

The very numerous authorities cited by the defendants, with the particular exceptions to which I shallpresently refer, only go to assert or recognize the general rule, which no one-can dispute, that the death of the principal is, by operation of law, a revocation of any existing agency, constituted by him in his lifetime, and which would, but for such revocation,, have still existed. Thus, we are referred to the case of Wallace v. Sanders, 7 Ohio Rep. 178, in which it was held by the court that an entry of land, purporting to have been “ made-by Anthony Singleton, attorney in fact for Christian Holmer,. deceased,” and made in his name, could be of no effect. The court, in giving the opinion, says : “ It can not be doubted, that, as a general rule, the authority of the attorney ceases-upon the death of the principal.” But in that case the attorney describes his principal as “ deceased” — very far from showing the fact of his death being unknown at the time.. Besides, the entry was an act that had to be made in the name of the principal, and so necessarily void. And this was the very point decided in the case of Galt v. Galloway, 4 Peters,, 344, cited by defendants’ counsel, that “ an entry made in-the name of a dead man is void.”

We are, however, referred to the American Leading Cases,, vol. 1, page 587, which seems directly in point. It is there laid down by t-he learned authors of that work, not only that (i the death of the principal * * * is an immediate-determination of an authority not coupled with an interest but they also add: “ and acts done by the agent after the principal’s death, though in ignorance of it, and in good faith .are void.” I propose here to refer to all the cases cited by the compilers in support of their foregoing proposition, as 1 did in regard to the cases referred to by Chancellor Kent in our former consideration of this case, so that we may see whether or not the proposition is sustained by the authorities referred to.

The first case there referred to in support of the proposition is Hunt v. Adm’r of Rousmaniere, 2 Mason Rep. 242. 'The petition in that case stated in substance that Rousma-niere had, in his lifetime, undertaken to secure his indebtedness to Hunt, the complainant, upon the schooner Industry, either by mortgage or bill of sale, or by a power of attorney, authorizing Hunt to sell the schooner and from the proceeds pay the indebtedness, in case the debtor should fail to pay the same; that, by the advice of counsel, the letter of attorney was executed as the most eligible and sufficient security upon the schooner; that, after the execution of the power of attorney, Rousmaniere died without paying the debt, and praying that the power of attorney might be regarded as a mortgage, or held to continue in full force, etc., to sell the schooner. On demurrer, the court refused to relieve the party, holding the authority to sell revoked by the death of the intestate, the principal. This case does not, therefore, look toward sustaining the proposition.

The next case referred to is that of Companari v. Woodburn, Adm’x of Woodburn, 15 C. B. 400. The declaration, in that case, stated that'it was agreed between the plaintiff and the said intestate that the plaintiff should endeavor to .sell a certain picture of said intestate, and that if the plaintiff succeeded in selling the same, the said intestate would pay him £100 ; that, in pursuance of said agreement, he did, before and after the death of the said intestate, en•deavor to sell, and after the death of said intestate, he did, in consequence of such endeavors, succeed in selling the said picture, which sale was confirmed by the defendant as administratrix; and yet the said defendant had made default, in paying the £100, which still remained due from said ad-ministratrix to the plaintiff, etc. On demurrer, the court held that the count disclosed no cause of action, inasmuch as the authority from the intestate to the plaintiff to sell the picture was revoked by the death of the intestate, and the' defendant’s confirmation of the sale, in the absence of an allegation that she was aware of the existence of the contract between the intestate and the plaintiff, was no adoption, of the contract by her, so as to make her liable to pay the-£100. This case does not, therefore, have any bearing upon, the proposition to sustain which it is cited.

The next case referred to is Galt and others v. Galloway and others, 4 Peters’ R. 331. The facts in the case, as set forth in the petition, may be briefly stated thus: In August, 1787, James (Salt made an entry for military lands, 1000 acres, on part of a military warrant, No. 194, and afterward died intestate, prior to 2d of March, 1807, and subsequently to his death, Elias Langham, without any authority from James Gfalt, or from the complainants (his heirs), caused an entry of the withdrawal of 400 acres to be made in the books of the surveyor, etc., and a patent for the 400 acres was afterward obtained by Gfalloway. Langham answered that at the request of one Westfall he withdrew the 400 acres, and that he believed Westfall purchased the warrant No. 194 from Galt in his lifetime, and that he considered himself in possession as the agent of Westfall, etc. Galloway states, in his answer, that Langham withdrew the 400 acres, and that he believes the withdrawal was authorized, but knows-not by whom. None of the defendants asserted that they derived any title or acquired a right to the land from any agent of Galt, or that they were in fact ignorant of the death of Galt at the time. The following are the only facts which the court say they find upon proof: “It is in proof that • James Galt, to whom the warrant issued, and in whose name ■ the locations under it were made, died' in 1800. The withdrawal was made in 1805.” And the court proceed to say “No principle is better settled than that the powers of an agent cease with the death of his principal.” And Judge McLean adds what, it is true, is in point in this case, although it is difficult to perceive how it was in that: “If an act of agency be done subsequent to the decease of the principal, though his death be unknown to the agent, the act is void.” Neither the facts of the case, nor the argument of the coun•sel, nor the opinion pronounced, show that this, question arose. The remark of Judge McLean is to be regarded merely as an obiter dictum, and is entitled to respect only as such. This, I think, appears even from the point upon which ,/udge McLean himself puts the case: “On the death of James Galt,” the court proceed to say, “ the land in controversy descended to his heirs, and there is no proof that they authorized Westfall to act on their behalf,” etc.

The case of Jenkins v. Atkins, 1 Humph. R. 294, was an action brought by the agent, who had, on behalf of his principal, after his death, and in ignorance of the fact, by virtue of a power of attorney from the principal, contracted to sell lands, and, as such attorney, had executed a bond for a conveyance of the same, and received part of the purchase money. The object of the action was to require a specific performance on the part of the vendee with him, the agent, , as principal. The case was, by the plaintiff’s counsel, placed on the ground of want of authority on his part to execute the bond in the name of the principal, and that it was thereupon obligatory upon the agent as his personal obligation. ' The plaintiff answered that he was then ready and prepared to make a conveyance of a valid title to the land to the ven-adee, according to the intent and meaning of the parties at the time of executing the bond; and plaintiff thereupon prayed for a decree for a specific performance on the part of •the vendee, and that he accept such conveyance and pay to the plaintiff the residue of the purchase money. The facts in that case, if the suit for specific performance had been brought by the defendant, would have presented the question* arising in this case. But the question was neither argued ;.nor presented in that case to the court. It is true that both .-counsel and court seem to have placed the case upon the same ground, as if the death of the principal had been well known at the time the contract was made by the agent.

At the next term of the same court (December term, 1840), was decided the case of Rigs, Aertson & Son v. Cage’s adm’r, 2 Humph. Rep. 350. The facts in the case may be briefly stated as follows : Wm. Cage and Marcus Cage, merchants and partners in trade, at Lagrange, Tenn., constituted Bledsoe their agent to purchase goods in Philadelphia. Before the purchase, but unknown to the parties, Wm. Cage died. The goods were sent forward and the surviving partner received them, and executed to the vendors, the plaintiffs, a note in the name of the firm, signed Wm. Cage & Co. James D. Cage, the administrator of Wm. Cage, was sued on that note, also (in one count of the declaration) for goods sold and delivered. No argument of counsel is given, but the question seems to have been fairly presented by the facts of the case. Green, J., the same judge who pronounced the opinion in Jenkins v. Atkins, in delivering the opinion said; “ The only question in. this ca.se is, do the acts of an agent, performed after the death of the principal, in pursuance of authority previously given, and in' ignorance of the death of the principal, bind the representative of the latter ? ” And upon this proposition he proceeds to say: “ The general principle of the common law is, that an authority conferred by letter of attorney, must be executed during the life of the principal. 1 Bac. Ab. Tit. Authority, 2. The death of the principal is an instantaneous and absolute revocation of the authority of the agent, unless the power be coupled with an interest. 2 Kent’s Com. 645.”

The foregoing is the only reasoning, and the only authority given in the case, either by the counsel or court. And having heretofore examined all the authorities referred to, upon which Chancellor Kent, in his Commentaries, rests the question (8 Ohio St. Rep. 529), and shown, as I think, that the authorities so referred to, by no means sustain his proposition; I only here notice the other authority, Bac. Ab., to which Judge Green refers. It is as follows : “ The authority given by letters of attorney, must be executed during the life of the person that gives it, * * * * because the letter of attorney is to constitute the attorney my representative for such a purpose, and, therefore, can continue in force only during the life of me, that am to be represented, * * * * And hence it is, that if J. S. made a letter of attorney to deliver seizin after my death, it is void, because he can not deliver seizin during my life, for that were plainly without any authority from me; nor can he do it after .my death for the former reason.” For which the author refers to 60 Lit. 52 — where the reason, given by Coke, is as follows : “ For if the feoffor dieth, the land descends to his heirs,” etc.

The next authority cited in the American Leading Cases is.that of Steirnemaun v. Cowing, 7 Johns. Ch. Rep. 275. There is nothing decided in that case, nor in the facts of the case, having any bearing upon the question, except a remark of Chancellor Kent, expressing the same opinion expressed in his Commentaries, vol. 2, p. 646, that “ the principle of the civil law, and which has been adopted by writers following that system, that for the sake of public convenience, powers do not expire until notice of the death of the principal, does not seem to have been hitherto ingrafted into the English law.” “ But” (adds the learned chancellor), “it is not necessary to form or declare any decided opinion on the subject.”

The case of Houghtaling v. Marvin, 7 Barb. Rep. 412, next referred to, was not a case where the death of the principal was unknown. The question in that case, was simply whether the power of the agent was one coupled with an interest, and, therefore, exercisable by the agent after the death of the principal. In pronouncing their opinion, the court say (p. 414-15): “But the amount paid to Tyler, after the death of Hayden, was paid by the defendant without authority, and in his own wrong. He was the son-in-law of Hayden, and knew of his death. He says that he assisted in the settlement of his estate. He can not, therefore, have paid it in ignorance of his death, and to be protected within the principle of 2 Vesey, 111, and Smout v. Ilberry (10 Mees. & Wels. 1).” The case, therefore, so far from sustaining the doctrine for Which cited, pretty clearly intimates a contrary rule.

The next case cited, that of Gale v. Tappan (12 N. H. 146), is equally foreign to the question. That was an action upon a promissory note. The demand of payment was made upon the maker by Eaton, as agent of Hannah Tappen, the payee, on the 1st day of November, 1839. It was proved by the defendant that Hannah Tappan died in 1838, and he insisted that no legal demand was, therefore, shown to have been made. It was not pretended by the plaintiff that the death of Hannah Tappan was not well known at the time the demand was made by Eaton, by virtue of the power of attorney, which he had received from her in her lifetime. And the court, therefore, held the objection to the demand well taken, and say : “ It has often been settled that an authority of this kind is determined by the death of the principalreferring to Coke on Litt. 52b and Bac. Ab. for the general rule. It is evident, therefore, that the case cited is irrelevant.

The only remaining case, to which reference is made by the authors of the American Leading Cases, is that of the surviving partners of McNaughton & Co. v. Moore (1 Haywood, 217). The case was decided in the superior court of North Carolina in 1795. An action of debt was brought upon a bond, payable to the partnership. The defense was, payment to a clerk of the firm, after the death of McNaughton, one of the partners; and the case depended upon the fact of the authority of the clerk, by virtue of his having been the clerk and agent of the firm in McNaughton’s lifetime, to receive payments on debts due the firm, after its dissolution by the death of McNaughton. From the opinion of the court, it will be seen that this case is also irrelevant. It was not an exercise of the agency, after the death of the principal, in ignorance of the suit. Judge Haywood, in his opinion, says : “ It is argued to be a hardship upon the defendant, if this payment was not allowed to be good. But there is none — the bond is in the name of McNaughton & Co. 'The death of the partner here was notorious. It is a thing in itself capable of notoriety, and if a man will pay to the clerk, after the death of the merchant, he acts in his own wrong. * * * * This must be clear, that whatever authority was derived from the deceased, so far as concerned his in terest, was countermanded by his death,” etc.

I have been thus particular to notice sundry cases referred to by the learned authors of the American Leading Cases, in support of their proposition, that “ acts done by the agent after the principal’s death, though in ignorance of it, and in good faith, are void.” And we have seen that the question involved in the proposition, only arose in one of the cases (Rigs, Aertson & Son v. Cage’s adm’r, 2 Humph. 350); and in that case, the report shows no argument of the case, or presentation of the question by counsel, as an exception to the general rule that, after an agency is revoked by the death of the principal, the acts of the agent are void. And the court decided the case upon the general principle that the death of the principal is a revocation of the authority of the agent.

Nor are they less successful in'maintaining their proposition in their disposition of the two or three cases which they refer to as opposed to' their proposition.

The case of Cassiday v. McKenzie, 4 Watts & Serg. 282, a.nd the case of Dick v. Page & Bacon, 17 Misso. 234, are certainly both direct adjudications against the proposition that acts of an agent, in good faith, after the death of the principal, and in ignorance of the fact, are necessarily void. In regard to the former they say : “ In opposition, however, to all the authorities, it was held in Cassiday v. McKenzie, that acts done by an agent, after his principal’s death, Iona fide, in ignorance of the fact, are valid and bindingand upon the same page they refer to*the case of Dick v. Page & Bacon, as good authority, and, in a foot note, say of it — “undoubtedly a.case well decided.”

The -two cases stands thus : In case of Cassiday v. McKenzie, the principal, in his lifetime, gave his agent a letter authorizing him to receive and receipt for certain money belonging to the principal. The agent presented the letter of authority to the party to whom it was addressed, and received the money, and gave his receipt for the same, shortly after the death of the principal, and in ignorance of the event. The court held the payment, so made in good faith and in ignorance of the death of the principal, binding upon his representatives.

The facts in the case of Dick v. Page & Bacon, were as follows: The principal, Doughty, at St. Louis, being in bad health and about to leave for New Orleans, requested the defendants, who were banters in St. Louis, to make advancements to his agent, if he should call upon them for money, and told his agent, who was present, to secure them for the same, whether he, the principal, lived or died. The principal went to New Orleans, and died there, on the 11th of March, 1851; and on the 19th of March, 1851, the agent, wanting funds, purchased of Page & Bacon, on account of the principal, an eastern bill for $2000, and placed in their hands, as collateral security, promissory notes to an amount exceeding $2600, the death of the principal not then being known; and the action was brought by Dick, as executor of the principal to recover the money so collected and received by Page & Bacon, on said promissory notes of the principal, so delivered to them by the agent, after the death of the principal. The court say, in deciding the case: “ There are respectable authorities, which maintain that the common and civil law harmonize on this subject. So the law is understood to be in Pennyslvania” — referring, doubtless, to the case of Cassiday v. McKenzie — and the court held the acts of the agent, so done in good faith in ignorance of the death of the principal, valid, and binding upon his representative.

• The difference in the two cases is simply this: In the Pennsylvania case, which is said by the authors of that work to be opposed to all the authorities, the agent had a written authority to receive the money of his principal, and to receipt for the same in his own name; and by virtue of that authority, and in ignorance of the death of the principal, he did receive it, and the payment so made to the agent was held a good payment.

In the Missouri case, which is said to be “ a case undoubtedly well decided,” the agent, under verlal authority of the principal, after his death, negotiated the purchase of a bill of exchange for $2000, and contracted to deliver, and did deliver, twenty-six hundred dollars and upward of promissory notes belonging to the principal, as collateral security to the bankers, in ignorance of the death of the principal — certainly a much larger and more complicated transaction than the Pennsylvania case; and if held, undoubtedly obligatory upon the representatives of the principal, it is certainly difficult to perceive how the transaction in the case of Cassiday v. McKenzie could he held void.

In thus briefly collating the American authorities, the opinions of Chancellor Kent and Judge Story are certainly entitled, from the character of those eminent jurists, to the highest respect; and, although ranging, as their opinions are found to be, upon different sides of this controverted ques-,ion, it is proper to here refer to the opinion expressed by each.

Chancellor Kent, in his Com., vol. 2, p. 646, thus expresses himself as to the general rule and the exception: “ The authority of an agent determines upon the death of his principal; and a joint authority to two persons terminates by the death of one of them. This is the general doctrine. By the civil law, and by the law of those countries which have adopted the civil law, the acts of any agent, done bona fide after the death of the principal, and before the notice of his death, are valid and binding on his representatives. But this equitable principle does not prevail in the English law; and the death of the principal is an instantaneous and absolute revocation of the authority of the agent, unless the power be coupled with an interest.” And the English authorities referred to in support of this statement are: The King, v. Corporation of Bedford Level, 6 East. Rep. 356; Watson v. King, 4 Camp. N. P. Rep. 272; Shipman v. Thompson, Willes Rep. 103, n.; Wynne v. Thomas, Ib. 563.

Judge Story, in treating upon the same subject, after mention of the same rule in Scotland and other countries where the civil law prevails, as stated by Chancellor Kent, says: “ Reasonable as these doctrines seem, and convenient as they must be admitted to be, for the practical purposes of trade and commerce, it bas been thought that they do not prevail in the common law, as recognized either in England or America” (referring to the opinion of Chancellor Kent, as above stated). “ But” (continues Judge Story), “ it may be doubted whether our law deserves such a reproach, at least to the full extent in which it is usually imputed to it.” * * * “Where the act, notwithstanding the death of the principal, can and may be done in the name of the agent, there seems to be a sound reason why his death should not be deemed to be a positive revocation under all circumstances, and that a subsequent execution of it may be valid. But where the act is required to be done in the name of the principal, the same objection would seem to lie to it in the foreign law as does lie in our law.” Story on Agency, sec. 495. In secs. 147, 148 and 150 of the same work, Judge Story treats particularly of the manner of executing contracts by the agent; and taken in connection with sec. 495, I think, the judge may reasonably be understood to concede that the death of the principal necessarily extinguishes the power of the agent to make a conveyance under seal, or to execute any obligation under seal as the deed of the principal, and obligatory as such upon his representatives. After stating in sec. 147 the rule usually laid down in cases of written contracts (subject to certain qualifications and exceptions), that in order to bind the principal, and make it his contract, the instrument must purport on its face to be the contract of the principal; or, at least, that the terms of the instrument should clearly show that the principal is intended to be positively bound thereby, and that the agent acts plainly as his agent in executing it; Judge Story adds : “Indeed, the rule has been laid down in ■broader terms, and it has been said to be an ancient rule of the law, that when any one has authority, as attorney, to do any act, he ought to do it in his name who gives the authority,” etc. But in sec. 148 he adds : “ This rule, thus laid down, is regularly true in regard to all solemn instruments under seal, although not, as we shall presently see, as to instruments not under seal. Therefore, if a person is authorized tc make a conveyance under seal of the lands of his principal, and be makes the conveyance by a deed in his own name, it will be a void conveyance/’ etc.

In sec. 152 the distinction between contracts under seal or deeds, and contracts not under seal, is thus expressed: “ But where an act is to be done in pais, or in any other manner than by written instrument and seal, then the act will be construed, if it may be, as most effectually to accomplish the end required by the principal; for when the act may take effect, if construed one way, and will be defeated if construed another, ut res magis valeat quam pereat, it will, to accomplish the intention of the parties, be construed so as to give it validity.”

I think, therefore, it is quite apparent that Judge Story would exclude from the equitable principle, mentioned by Chancellor Kent as peculiar to the civil law, only that class of contracts mentioned in sec. 148, and would recognize the application of the doctrine to acts to he done in pais, and to that class of contracts named in sec. 152. Otherwise there would be no ground of dissent left to him from the opinion expressed by Chancellor Kent. And yet, that Judge Story did dissent from the views expressed by Chancellor Kent, is evident from his remark, after referring to the views expressed by the chancellor, in the strong language, that “ it may he doubted whether our law deserves such reproach.” Nor would he have thus stated the limitation — “ where the act to be done musí be done in the name of the principal, and not in that of the agent” — if he had understood any such limitation to be recognized by Chancellor Kent in his statement of the law.

I do not propose to here take further notice of the American authorities, although there is quite a number which might be deemed of more or less importance in determining precisely how the weight of authority in this country stands And I will barely add that I have been thus particular in considering the cases referred to by the authors of the American Leading Cases (and which might seem due to so highly respectable an authority), more particularly for the reason that the work is the only American authority, within my knowledge, wbicb bas attempted to sustain the proposition, bj adjudicated cases, that acts of an agent, within the scope of his authority and not necessary to be done in the name of his principal, and done in good faith aftér the death of the principal, and without notice of the event, are necessarily void.

It is to the English authorities, however, we should naturally turn to ascertain the doctrine of the common law on this subject. But there, it will be found, the same dearth of authority prevails. The English cases cited to sustain the doctrine as expressed in Kent’s Commentaries, will be found to relate to the general rule of revocation by death, rather than to the exception. It will be found, however, that there is more in those cases to favor than to exclude the idea that the exception insisted upon to the general rule prevails. The first case cited — The King v. The Corporation of Bedford, Level (6 East. 356) certainly contains nothing opposed to the exception; while from a careful examination of the casé there is incidentally a recognition of the doctrine insisted upon. The following are some of the points stated in the syllabus : “ 3d. That however such deputy were properly or not constituted in the first instance, yet his authority necessarily expired on the death of his principal. 4th. That however the acts of a legal deputy to a ministerial officer may be good after the death of his principal, before notice thereof to those who are interested in his acts, as being done under the color of authority, yet that the titles of landowners within* the level registered by the deputy after the death of the principal was known, were invalid.”

The same may be remarked of the case of Shipman v. Thomas, Willes’ Rep. 103, n. While the general rule is recognized, the exception is pretty clearly intimated. The action, in assumpsit, was brought by an executor, in his own name, against an attorney empowered by the testator to collect rents, to recover the money collected by the attorney from the tenants as such attorney, after the death of the testator, his principal. The following is the language of that part of the opinion which seems to recognize the doctrine in question: “ It is,” says Mr. Fortescue, “ quite a new debt created by the defendant to the executor since the death of the testator, and a new cause of action which was not subsisting before. The defendant was never indebted to the testator for this money, and the original debtors, the tenants, were discharged.” But very obviously the tenants were not discharged if the attorney, so appointed by the principal in his lifetime, had not authority to receive and the tenants to pay, by virtue of the agency, after the death of the principal. It may, therefore, be presumed that the tenants paid their rent to his attorney in ignorance of the death of the principal.

The next case cited in support of Chancellor Kent’s proposition, is that of Watson v. King, 4 Comp. N. P. Rep. 272; and that ease also, it will be perceived, presents only the general rule of revocation by death, and that of a power coupled with an interest being irrevocable. Besides, in that case, Ward, having sold under a power of attorney, is presumed to have indorsed the register in Maxwell’s name. And if so, it must have necessarily been void, the same as would a deed executed in like manner, for the conveyance of land. Lord Ellenborough delivered the opinion, and expressed no qualification of the opinion which he had before delivered in the case of The King v. Corporation of Bedford Level, already referred to.

Again, in the case of Kate v. Hilbert (2 Vesey, jr. 117), the distinction between acts done before and acts done after the death of the principal was Jcnown, is clearly recognized. The facts in that case, relevant to this question, were briefly as follows: Mark Bell, shortly before his death, told his friend, Mary Tate, that he would give her £200, and thereupon gave her a check upon his banker, who then held £800 of his money, in this form: “Pay to self or bearer £200, Mark Bell.” The check was not presented until after the death of the testator was known to the parties. Chancellor Loughborough, in delivering his opinion in the case, said: “ If she had received it immediately after the death of the testatator, and before the banker was apprised of it, I am in dined to think no court would have taken it from her.”

As to all those English authorities referred. to in support of the views expressed by Chancellor Kent, that “this equitable principle does not prevail in the English law,” it would be sufficient to show that the authorities do not deny its exist ence; but the authorities will be found in fact to recognize its existence to the extent and in the manner above mentioned.

It can not be pretended that any of those cases referred to by Chancellor Kent are directly in point upon the controverted question; and I do not know of more than two or three cases in the English reports where the question of the obligatory character of the acts of the agent done after the death of the principal, and without notice, arose, so as directly to present the question under consideration. The case of Blades v. Free, ex’r of Clark, 9 Barn. & Cress. 167, was decided in king’s bench in 1829. It was an action of assump-sit. The opinion of the court is thus expressed by the syllabus : “ When a man, who had for some years cohabited with a woman who passed for his wife, went abroad, leaving her and her family at his residence, and died abroad — Held: That the woman might have the .same authority to bind him by her contracts for necessaries, as if she had been his wife, but that his executor was not bound to pay for any goods supplied to her after his death, although before information of his death had been received.”

But in that case, the counsel of the plaintiffs thus stated the question submitted to the court: “ The question is, whether Clark may not be taken to have agreed, before he left England to pay for such goods as were furnished before notice of his death was received.” It appears, therefore, although the facts of the case fairly presented the question, it was not presented or argued by counsel, or considered by the court.

But in the argument of the case, counsel thus refer to a decision made by Lord Kenyon: “Now, although an authority may be revoked by death, a contract can not. In McDonnell v. McDonnell (Buck. 399), it was held that bankruptcy did not make void the acts done under a power of attorney previously given by the bankrupt; and in that case the vice-chancellor cited a case tried before Lord Kenyon, where á power of attorney had been sent out to India, and certain acts were done under it there, after the death of the principal, but before notice of it, and Lord Kenyon supported those acts.

. The other English case is that of Smout v. Ilberry (10 Meeson & Welsby, 1), decided in the court of exchequer in 1842. Action of debt, for goods sold and delivered. Plea, non debit. It appeared on trial that the plaintiff was a butcher, and the- defendant the widow of James liberry, who left England for China in May, 1839, and was lost in the outward voyage, on the 14th of October, 1839. The news of his death arrived in England on the 13th of March, 1840. The plaintiff had supplied meat to the family before Mr. II-berry sailed, and during his voyage, down to the time of the news of his death, and even afterward. Upon the day of his death, the amount of the debt was £52 13s. 11 d. Between the day of his death, and the news of his death, the meat had been supplied to the amount of £19 9s., and after that to the amount of £6 7s. The action was brought for the last two sums. The defendant had tendered and paid into court the last named sum. The court held, as to the £19 9s., that a recovery could not be had by the plaintiff upon these facts. In their opinion the court say : “ Here the agent had in fact full authority to contract, and did contract in the name of the principal. There is no ground for saying, that in representing her authority as continuing she did any wrong whatever. There was no mala fides on her part. * * * We were, in the course of the argument, pressed with the difficulty, that if the defendant be not personally liable, there is no one liable on this contract at all; for Blades v. Free, 9 Barn. & Cress. 167; 4 Man. & Ry. 282, has decided that in such a case, the executors of the husband are not liable. This may be so; but we do not think, that if it be so, it affords to us any ground for holding the defendant liable. * * * * Our judgment, on the present